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Full text of "Jewish eugenics, and other essays; three papers read before the New York board of Jewish ministers, 1915. I. Jewish eugenics by Rabbi Max Reichler. II. The defective in Jewish law and literature, by Rabbi Joel Blau. III. Capital punishment among the Jews, by Rev. Dr. D. de Sola Pool"

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JEWISH EUGENICS 

AND OTHER ESSAYS 

THREE PAPERS READ BEFORE THE 

NEW YORK BOARD OF JEWISH MINISTERS 
1915 

I 

JEWISH EUGENICS 

By Rabbi Max Reichler 
II 

THE DEFECTIVE IN JEWISH LAW AND 
LITERATURE 

By Rabbi Joel Blau 
III 

CAPITAL PUNISHMENT AMONG 
THE JEWS 

By Rev. Dr. D. de Sola Pool 



NEW YORK 

BLOCH PUBLISHING COMPANY 

1916 



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Copyright, 1916, by 
BLOCH PUBLISHING COMPANY 



CONTENTS 



I. Jewish Eugenics 7 

II. The Defective in Jewish Law and 

Literature 23 

III. Capital Punishment Among the Jews . 53 



424753 



Jewish Eugenics 

Rabbi Max Reichler. B. A. 



JEWISH EUGENICS 



Who knows the cause of Israel's survival? Why- 
did the Jew survive the onslaughts of Time, when 
others, numerically and politically stronger, suc- 
cumbed? Obedience to the Law of Life, declares 
the modern student of eugenics, was the saving 
quality which rendered the Jewish race immune 
from disease and destruction. "The Jews, ancient 
and modern," says Dr. Stanton Coit, "have always 
understood the science of eugenics, and have gov- 
erned themselves in accordance with it; hence the 
preservation of the Jewish race." 1 

I. Jewish Attitude 

To be sure eugenics as a science could hardly 
have existed among the ancient Jews; but many 
eugenic rules were certainly incorporated in the 
large collection of Biblical and Rabbinical laws. 
Indeed there are clear indications of a conscious 
effort to utilize all influences that might improve the 
inborn qualities of the Jewish race, and to guard 
against any practice that might vitiate the purity of 



1 Ci. also Social Direction of Human Evolution, by Prof. 
William E. Kellicott, 1911, p. 231. 

7 



8 Jewish Eugenics 

the race, or "impair the racial qualities of future 
generations" either physically, mentally, or morally. 1 
The Jew approached the matter of sex relationship 
neither with the horror of the prude, nor with the 
passionate eagerness of the pagan, but with the sane 
and sound attitude of the far-seeing prophet. His 
goal was the creation of the ideal home, which to 
him meant the abode of purity and happiness, the 
source of strength and vigor for body and mind. 8 

II. Home of the Pure Bloods 

The very founder of the Jewish race, the patriarch 
Abraham, recognized the importance of certain in- 
herited qualities, and insisted that the wife of his 
"only beloved son" should not come from "the 
daughters of the Canaanites," but from the seed of a 
superior stock. 4 

In justifying this seemingly narrow view of our 
patriarch, one of the Rabbis significantly suggests: 
"Even if the wheat of your own clime does not 
appear to be of the best, its seeds will prove more 
productive than others not suitable to that particular 
soil." 5 

This contention is eugenically correct. Davenport 
tells of a settlement worker of this city who made 



2 Sir Francis Galton defines eugenics as "the science which 
deals with all influences that improve the inborn qualities of 
the race." 

3 Cf. Ps. cxxviii, 3-4. The National Conference on Race 
Betterment which met recently at Battle Creek declared that 
"the core of race betterment consists in promoting more and 
better homes." 

4 Gen. xxiv, 3-4. 

*Ber. Rabbah 59, 11. 



Jewish Eugenics 9 

special inquiry concerning a certain unruly and 
criminally inclined section of his territory, and 
found that the offenders came from one village in 
Calabria, known as "the home of the brigands." 8 
Just as there is a home of the brigands, so there may 
be "a home of the pure bloods." 

Eugenists also claim that though consanguineous 
marriages are in most cases injurious to the progeny, 
yet where relatives possess "valuable characters, 
whether apparent or not, marriages between them 
might be encouraged, as a means of rendering per- 
manent a rare and valuable family trait, which 
might otherwise be much less likely to become an 
established characteristic." 7 Abraham's servant, 
Eliezer, so the Midrash states, desired to offer his 
own daughter to Isaac, but his master sternly re- 
buked him, saying: "Thou art cursed, and my son 
is blessed, and it does not behoove the cursed to 
mate with the blessed, and thus deteriorate the 
quality of the race." 8 

III. Early Marriages 

The aim of eugenics is to encourage the repro- 
duction of the good and "blessed" human proto- 
plasm and the elimination of the impure and 



^Heredity in Relation to Eugenics, by Charles B. Davenport, 
New York, 1911, p. 183. 

1 Social Direction of Human Evolution, p. 154; Heredity in 
Relation to Eugenics, p. 185. The Biblical expression "a bone 
of my bones" (Gen. ii, 23), refers, according to the Rabbis, to 
a man who marries one of his relatives. (Bereshith Rabbah 
18, 5). The marriage between uncle and niece is also recom- 
mended (Yebamoth 63b). 

8 Ber. Rabbah 59, 12 ; cf . Gen. ix, 25-26. 



10 Jewish Eugenics 

"cursed" human protoplasm. According to Francis 
Galton, it is "to check the birthrate of the unfit, and 
to further the productivity of the fit by early 
marriages and the rearing of healthful children." 

The Rabbis may or may not have had such a 
definite purpose in mind, but their Halachic legis- 
lation and Haggadic observations naturally tended 
to bring about the same results. Early marriages 
were praised as most desirable. Rabbi Ishmael 
claimed that God was greatly displeased with the 
man who did not marry before the age of twenty. 9 
Rav Hunah refused to see Rav Hamnuna, a man of 
great repute (adam gadol), after the former discov- 
ered that his visitor was a bachelor. 10 "He who is 
not married," runs a Talmudic saying, "is destitute 
of all joy, blessing, and happiness." 11 "He has no 
conception of the sweetness of life"; 12 indeed "he 
cannot be regarded as a man at all." 13 

IV. Reproduction 

Among the seven types not acceptable before God 
are included both the unmarried man and the 
married man without children. 14 A man without 
children experiences death in life, 16 and surely de- 
serves our pity when he departs from this earth. 16 



»Kiddushin 29b. 

"Ibid. 

"Midrash Lekach Tob, Gen. 2, ed. Buber p. 21. 

12 Ber. Rabbah ch. 17. 

13 Yalkut Gen. ii, 23. 

"Pesachim 113b. 

16 Nedarim 64b. 

16 M. K. 27b. 



Jewish Eugenics 11 

For only he is dead who leaves no son behind to 
continue his work, while he who leaves even one 
worthy son is not really dead but merely sleeps. 17 
He who does not contribute his share to the" repro- 
duction of the race, reduces the divine type, 18 
causes the Shechinah to depart from Israel, 19 and 
is guilty of murder. 20 The duty of reproduction is 
incumbent on all, both young and old. 21 

The Rabbis, like the eugenists of to-day, measured 
the success of a marriage by the number and quality 
of the offspring. In their judgments the main 
objects of marriage were the reproduction of the 
human race (leshem piryah veribyah), and the 
augmentation of the favored stock (lethikun 
havlad). 22 Hence they advised that an extremely 
tall man should not marry an extremely tall woman, 
lest the children be awkwardly tall ; nor should one 
of short stature marry a woman of the same size, 
lest their offspring be dwarfed. For the same 
reason, the intermarriage between blonds or between 
dark-complexioned people was not countenanced. 28 
A number of precautions in sexual relations were 
prescribed in order to prevent the birth of defectives, 



"B. B. 110b. 

"Yebamoth 63b. 

"Ibid. 64a. 

2<>Ibid 63b, 64a. 

"Ibid 62b. Cf. Koheleth Rabbah 7, 8, also Social Direction 
of Human Evolution, p. 124, concerning pathological defects 
of first born and earlier members of the family. 

22Cf. Tur Eben Haezer ch. 25. 

"Bechoroth 45b. 



12 Jewish Eugenics 

such as lepers, 24 epileptics, 25 the deaf and the dumb, 
the lame and the blind. 26 

V. Intelligent Love 

Raba advised every young man not to marry a 
girl before he knew all about her immediate family, 
especially about her brothers, for "children usually 
inherit the traits of their mother's brothers." 27 
"Take your time," counsels a Talmudic proverb, 
"before you ask a woman to be your wife"; 28 in 
other words, "fall in love intelligently." Other well- 
known Rabbinic maxims are: "a man drinketh not 
out of a cup which he hath not inspected," 29 and "a 
bride whose eyes are defective, ought to undergo a 
general physical examination." 30 

In the opinion of Rabbi Jonathan both Eliezer, the 
servant of Abraham, and Saul, king of Israel, acted 
most indiscreetly by treating marriage in a rather 
frivolous manner. Eliezer said : "Behold the virgin 
which will say drink, and I will also draw for the 
camels, that is the woman whom the Lord hath 
appointed for my master's son." Suppose that 
woman had some physical defects, would she have 
been a suitable mate for Isaac? Similarly Saul 
proclaimed : "The man who killeth Goliath, the king 
will give him his daughter." If that man had been 



24 Sifra, Mezora ch. 3. 

"Pesachim 112b. 

"Nedarim 20a. 

* 7 B. B. 110a. 

28 Yebamoth 63a. 

2»Kethuboth 75b. 

ao Shir Hashirim Rabbah 4, 1-3 ; cf . Taanith 24a. 



Jewish Eugenics 13 

a slave or possessed other hereditary defects, would 
Saul have sanctioned the marriage? 81 

VI. Non-Eugenic Marriages 

The attempt to limit the multiplication of the 
undesirable elements in the Jewish race, resulted in 
three kinds of prohibitions. First, prohibition 
against the marriage of defectives by reason of 
heredity (pesul yochesin) ; secondly, the prohibition 
against the marriage of personal defectives (debar 
shebagufon) ; thirdly, the prohibition against con- 
sanguineous marriages (ervah). 52 

Besides the prohibition against defective mar- 
riages mentioned in the Mosaic code, 83 the Talmud 
forbade one to marry into a confirmed leprous or 
epileptic family, 34 or to marry a woman who had 
buried three husbands. 35 The union between an 
old man and a young girl was condemned in un- 
equivocal terms. 36 Persons or families manifesting 
continuous antagonism to each other were advised 
not to intermarry. 37 Great, in the eyes of the Rabbis, 
was the offense of him who married a woman from 



31 Taanith 4a. 

32 Tur Eben Haezer, Piryah Veribyah, ch. 4. 

33 Deuteronomy xxiii, 2. 

34 Yebamoth 64a. 

85 Niddah 64a. It is interesting to note that a late authority 
insists that the same rule should apply to a man who buried 
three wives. Cf. Beer Heteb to Eben Haezer, Ishoth 9, 2. 

36 Sanhedrin 76a; cf. also Yebamoth 106b and Ruth Rabbah 
3, 10. 

37 Kiddushin 71b. Cf. Heredity in Relation to Eugenics, p. 8, 
where the suggestion is made that the curious antipathy of 
red-haired persons of the opposite sexes for each other, may 
be an eugenic antipathy. 



14 Jewish Eugenics 

an element classed among the unfit. His act was as 
reprehensible as if he had dug up every fertile field 
in existence and sown it with salt. 38 A quintuple 
transgression was his, 30 for which he will be bound 
hand and foot by Elijah, the great purifier, 40 and 
flogged by God himself. "Woe unto him who de- 
teriorates the quality of his children and defiles the 
purity of his family," is the verdict of Elijah 
endorsed by God. 41 On the other hand, the mating 
of two persons possessing unique and noble traits 
cannot but result in the establishment of superior 
and influential families. 42 When God will cause his 
Shechinah to dwell in Israel, only such which 
scrupulously preserved the purity of their families, 
will be privileged to witness the manifestation of 
the Holy Spirit. 43 

VII. Psychical Eugenics 

The distinctive feature, however, of Jewish 
eugenics lies in the greater emphasis laid on the 
psychical well-being of posterity, in contradistinc- 
tion to the merely physical well-being which is the 
chief concern of modern eugenists. At the Congress 
of Eugenics recently held at London, one of our 
modern eugenists, Professor Samuel C. Smith of 
the University of Minnesota, exclaimed : "If I were 
to choose my own father, I would rather have a 



38 Kiddushin 70a. 

89 Aboth Derabbi Nathan, ch. 26. 

*°Cf. Kiddushin 71a. 

"Kiddushin 70a. 

42 Bamidbar Rabbah 3, 4. 

43 Kiddushin 70b. 



Jewish Eugenics 15 

robust burglar than a consumptive bishop." The 
Rabbis, on the other hand, tell us that when the 
question came up whether or not the Gibeonites 
should be permitted to intermarry with the children 
of Israel, David tested them, in order to ascertain 
not so much their physical fitness but rather their 
psychical fitness, and found them wanting. He 
discovered that they did not possess the three "unit 
characters" peculiar to Israel, namely: sympathy, 
modesty and philanthropy. He therefore thought it 
eugenically inadvisable to allow their mating with a 
spiritually better-developed stock. 44 Rabbi Levi 
enumerates nine undesirable psychical qualities 
which ought to be eliminated from amongst the 
Jewish race. 45 

VIII. Eugenics and Religion 

The Jew took his spiritual mission as representing 
a "kingdom of priests and a holy kingdom" quite 
seriously, and used all possible eugenic means to 
preserve those rare emotional and spiritual qualities 
developed during centuries of slow progress and 
unfolding. Intuitively he felt the truth, so well 
expressed by a modern student of eugenics, that 
"Religion would be a more effective thing, if every- 
body had a healthy emotional nature ; but it can do 
nothing with natures that have not the elements of 
love, loyalty and devotion." 46 The Rabbis would 
say: Religion can do nothing with natures that 



"Yebamoth 79a. 

"Nedarim 20b. 

"Heredity in Relation to Eugenics, p. 255. 



16 Jewish Eugenics 

have not the elements of sympathy, modesty and 
philanthropy. Hence they urged that a man should 
be willing to offer all his possessions for the 
opportunity of marrying a member of a psychically 
well-developed family. 47 

The marriage between the offspring of inferior 
stock and that of superior stock, such as the 
marriage between a scholar and the daughter of an 
am-haarez, or between an am-haarez and the 
daughter of a scholar, was considered extremely 
undesirable, and was condemned very strongly. 48 
Moreover, no Rabbi or Talmid Chacham was allowed 
to take part in the celebration of such a non-eugenic 
union. 49 

An historical case is cited by Rabbi Eliezer to 
prove that one should always select his soul-mate 
from amongst the spiritually better-developed 
families. Moses married a daughter of Jethro, a 
heathen priest, and the result was that one of his 
grandsons, Jonathan, became an idolatrous priest. 
Aaron, on the other hand, married the daughter of 
Abinadab, and history records the name of his 
grandson Phinehas as the hero who defended the 
honor and purity of Israel. 50 

Parents living normal and righteous lives are not 
only a blessing to themselves, but also to their chil- 
dren and children's children, until the end of all 
generations; while parents living abnormal and 



* 7 Pesachim 49b. 

48 Kiddushin 49b ; cf . also Pesachim 49b. 

* 9 Pesachim 49b. 

8 °B. B. 109b. 



Jewish Eugenics 17 

immoral lives bring ruin and calamity not only on 
themselves, but also on their children and children's 
children, to the end of all generations. 51 

IX. Heredity 

A parallel to the "rough eugenic ideal" of 
marrying "health, wealth and wisdom" 52 is found in 
the words of Rabbi Akiba, who claims that "a 
father bequeaths to his child beauty, health, wealth, 
wisdom and longevity." 58 Similarly, ugliness, 
sickness, poverty, stupidity and the tendency to 
premature death, are transmitted from father to 
offspring. 54 Hence we are told that when Moses desired 
to know why some of the righteous suffer in health 
and material prosperity, while others prosper and 
reap success; and again, why some of the wicked 
suffer, while others enjoy success and material 
well-being; God explained that the righteous and 
wicked who thrive and flourish, are usually the 
descendants of righteous parents, while those who 
suffer and fail materially are the descendants of 
wicked parents. 55 

X. Priceless Heritage 

Thus the Rabbis recognized the fact that both 
physical and psychical qualities were inherited, and 
endeavored by direct precept and law, as well as by 



61 Yoma 87a. 

62 Heredity in Relation to Eugenics, p. 8. 

"Eduyoth 2, 9. 

"Yer. Kiddushin 1, 7. 

86 Berachoth 7a. 



18 Jewish Eugenics 

indirect advice and admonition, to preserve and 
improve the inborn, wholesome qualities of the 
Jewish race. It is true that they were willing to 
concede that "a pure-bred individual may be pro- 
duced by a hybrid mated with a pure bred," for 
they found examples of that nature in Ruth the 
Moabitess, Naamah the Ammonitess, 58 Hezekiah 
and Mordecai. 57 As a general eugenic rule, how- 
ever, they maintained that one cannot produce "a 
clean thing out of an unclean," and discouraged any 
kind of intermarriage even with proselytes. 58 Their 
ideal was a race healthy in body and in spirit, pure 
and undefiled, devoid of any admixture of inferior 
human protoplasm. 69 

Such an ideal, though apparently narrow and 
chauvinistic, has its eugenic value, as the following 
suggestive quotation from a well-known eugenist 
clearly indicates. "Families in which good and noble 
qualities of mind and body have become hereditary, 
form a natural aristocracy ; and if such families take 
pride in recording their pedigrees, marry among 
themselves, and establish a predominant fertility, 
they can assure success and position to the majority 
of their descendants in any political future. They 
can become the guardians and trustees of a sound 
inborn heritage, which, incorruptible and undefiled, 
they can preserve in purity and vigor throughout 
whatever period of ignorance and decay may be in 



"Yebamoth 63a. 

"Bamidbar Rabbah, Chukath ch. 19. 
"Pesachim 112b, Kiddushin 70b. 
"Yer. Kilayim ch. 1. 



Jewish Eugenics 19 

store for the nation at large. Neglect to hand on 
undimmed the priceless germinal qualities which 
such families possess, can be regarded only as a 
betrayal of a sacred trust." 90 



60 See Social Direction of Human Evolution, p. 238. 



The Defective in Jewish 
Law and Literature 

Rabbi Joel Blau 



CONTENTS 



Introduction 1 

General Considerations 3 

Legal Status 9 

(a) Chazakah 9 

(b) Zechiyah 10 

(c) Inheritance 10 

(d) Sales .12 

(e) Honor 13 

(f) General Legal Standing 13 

(g) Status of the Blind 14 

(h) Marriage and Divorce 14 

Religious Status 17 

The Aggadah 20 



THE DEFECTIVE IN JEWISH LAW 
AND LITERATURE 



INTRODUCTION 

There are two typical attitudes toward the 
phenomena of existence. One may simply take these 
phenomena for granted, unquestioningly, uncom- 
plainingly. Whatever their cause and origin, they are 
here and must be dealt with somehow. They must be 
adjusted to men and men must be adjusted to them, 
according to the demands and limitations of the 
individual and of society. Or again, one may refuse 
to take them for granted. One may go behind these 
phenomena and inquire into their cause. To him who 
adopts the latter attitude, practical means of adjust- 
ment are not satisfactory, his concern being to find 
those higher, ideal adjustments whereby life as a 
whole, with its light and shadow, may be shown to 
conform to the laws of mind and morals, of reason- 
ableness and righteousness. 

The difference between these two attitudes is 
particularly apparent in the case of such phenomena 
as introduce jarring discord into human life. Facing 

23 



24 The Defective in Jewish Law and Literature 

such discord, the problem of the human mind is : How 
is it to be brought into harmony with God's creative 
plan? with God's attributes of justice and mercy? 
Now, one may simply ignore this problem, saying that 
this is one of the "hidden things that belong to the 
Eternal," and then proceed to deal with the "revealed 
things that belong to us." Causes are hidden, but 
effects are revealed; and one may be content to deal 
with the human effects rather than with the divine 
causes of existing ills. Or again, one may boldly 
venture into the region of causality and, troubled by 
the wailing sounds and festering sights of human 
suffering, one may ask the age-long question of a Job 
or a Jeremiah, How can God afflict the sons of men so 
grievously ? 

In a word, the one attitude deals with a scheme of 
human government, the other, with a scheme of divine 
government. 

These attitudes, as here set forth, are represented 
in Jewish Literature by the Halacha and the Aggadah, 
respectively. In this broad view, of course, the terms 
Halacha and Aggadah are not to be taken as referring 
merely to the Talmud and Midrashim but also to the 
Bible, for the Bible, too, has its Halachistic, or 
legalistic contents, as well as its Aggadistic, or non- 
legalistic portions. Whether in the Bible or in the 
rabbinic interpretations, this characteristic distinction 
between Halacha and Aggadah can be traced through- 
out. The Halacha does not concern itself with the 
causes of phenomena, only with their effects. It does 
not seek for an ideal world-view; it views the world 
as it is and deals with it in a practical way. The 



The Defective in Jewish Law and Literature 25 

Aggadah, on the contrary, searches for the causes of 
things — causes that lie concealed in the lap of God — 
whose workings, though seemingly evil, are yet per- 
ceived to accord with His eternal goodness. Since 
now the distressing phenomenon presented by the 
existence of mentally and physically defective men 
and women is one of the discordant elements of human 
life, we should expect to find with regard to it a 
marked difference between the attitude of the Halacha 
and that of the Aggadah. The Halacha accepts the 
phenomenon of Subnormality and tries to bring it into 
right relations with man; the Aggadah inquires into 
the why and wherefore of Subnormality and en- 
deavors to bring it into right relations with God. 

General Considerations 

The Halacha deals chiefly with the following types 
of Subnormality: 

1. Cheresh — deaf-mute or deaf ; 

2. litem — mute ; 

3. Shoteh — feeble-minded, monomaniac, or 

insane ; 

4. Nichpeh — epileptic ; 

5. Suma — blind ; 

6. Tumtum ve-Androgunos — Neuter and Her- 

maphrodite ; 

7. Saris ve-Aylonith — the sterile in both male 

and female. 
It is to be noted that Deafmutism and Insanity are 
most frequently met with in the Halacha, much more 
frequently than all other types of subnormality. We 



26 The Defective in Jewish Law and Literature 

are nevertheless not justified in inferring from this 
circumstance that these two afflictions were the most 
prevalent ones among Jews ; rather is the explanation 
to be found in the fact that these are the farthest 
departures from the normal state, and hence called for 
numerous special measures. 

Further be it noted that the Talmud as well as the 
Codes always mention the deafmute and the insane 
together with the minor as belonging to the selfsame 
class of the legally incompetent and mentally irrespon- 
sible. Deafmutism according to the Talmud consti- 
tutes a mental defect no less than a physical affliction. 
The rabbinic dictum is: "Cheresh lav bar deah hu" 1 
But the disqualifying element in deafmutism is rather 
deafness than dumbness. Maimonides, in his Com- 
mentary on Terumoth, declares that the cause of 
dumbness lies in congenital deafness. 2 Hence the 
tendency in the Codes — specifically in the Yad 
Hachazakah and the Shulchan Aruch — is, on the 
whole, to include the deaf who speak with the deaf 
and dumb in the same legal provisions, though it is 
conceded that the former, unlike the latter, may be of 
sound minds. 3 There is, however, scarcely any doubt 
about the mental competency of the Mem — the dumb 
who can hear — though, by reason of his affliction, he 
is to some extent legally disqualified; for in the case 
of the hearing mute the ear is an ingress to the 



iChag. 2b ; Git. 23a. 

2 Terumoth I, 2. The statement, in the same passage, that 
the "Mem" was included by the Rabbis in the definition of 
"cheresh" is unintelligible and does not tally with the known 
Rabbinic pronouncements on the subject. 

*Maim. Yad, Eduth IX, 11. 



The Defective in Jewish Law and Literature 27 

understanding. In the Talmud, 4 the verse : "That they 
may hear and that they may learn" 5 is applied also to 
the hearing mute, who can learn because they can hear ; 
and in corroboration of this, a touching story is told of 
two mutes who listened diligently to the teachings of 
R. Yehudah Ha-Nassi, their heads nodding and their 
lips moving with the vain effort to speak. Rabbi took 
pity on them and prayed for them, whereupon they 
obtained the power of speech and were found to be 
well-versed in all the disciplines of the Law. 

As we follow the evolution of the Talmudical law 
concerning the divers classes of mutes through the 
various codes, the matter becomes more and more 
involved; but the impression gained throughout is, 
that the original law is gradually applied with increas- 
ing rigor even to such mutes as cannot be classed 
among the mentally incompetent. Originally, the in- 
tention of the Rabbis seems to have been to disqualify 
the hearing-mute and the speaking-deaf solely on 
technical grounds in cases where the faculties of 
speech and audition are indispensable requirements. 
For instance, the deaf though speaking, and the mute 
though hearing, cannot serve as witnesses, since they 
cannot comply with the requirements of "hearing" and 
"telling" adumbrated in Lev. V, l. 8 But in other 
respects, where the question of mental soundness is not 
at issue, there was no intention to disqualify these two 
classes of mutes. In fact, the Mishnah 7 lays down the 



*Chag. 8a. 
B Deut. xxxi, 12. 
«Git. 71a. 
7 Terumoth I, 2. 



28 The Defective in Jewish Law and Literature 

principle that wherever the word "Cheresh" occurs, 
only the deaf-mute are meant thereby; and the 
Gemarah, 8 in quoting this Mishnaic principle, cites in 
support thereof, a Baraitha which expressly declares 
that both the speaking-deaf and the hearing-mute are 
to be dealt with as mentally competent, though this 
same Baraitha, harking back to the Psalm- verse : "And 
I am like a "Cheresh" that heareth not and like an 
"Illem" that openeth not his mouth," 8 holds that the 
term Cheresh refers both to deafmute and speaking- 
deaf. It is plain, therefore, that while as a matter of 
terminology the speaking-deaf are classed with deaf- 
mute, as a matter of law they are classed with the 
hearing-mute. Nevertheless, this principle is not 
sustained in the Codes. For instance, in the matter of 
the validity of sales negotiated by the various kinds of 
mutes, R. Jacob b. Asher in his Tur, 10 basing himself 
probably on the Mishnah in Gittin VII, l, 11 classes the 
hearing-mute with the deafmute, and the speaking- 
deaf with the normal; while Maimonides 12 and R. J. 
Caro 13 class, conversely, the speaking-deaf with the 
deaf-mute and the hearing-mute with the normal, both 
thus reversing the Mishnaic definition of Cheresh. 
Indeed, one is led to conclude, that Maimonides con- 



8 Chag. 2b. 

®Ps. xxxviii 14. 

10 Choshen Mishpat Chap. 235. 

11 Wrongly, I believe, for the discrimination shown there 
against the mute refers only to "nishtatek" one who became 
dumb through sudden illness, in which case the question of 
sanity might be mooted, but not to "illem," who is considered 
a mentally sane being. 

"Maim. Yad, Mechirah XXIX, 13. 

13 Chosh. Mishp. Chap. 235. 



The Defective in Jewish Law and Literature 29 

sidered the deduction from the above Psalm-verse 
conclusive, thus raising mere terminology to the im- 
portance of law. 14 The net result of all this is, that 
the attitude of the law becomes more rigorous towards 
all classes of the mute and the deaf, their sanity being 
more or less challenged. 

But of course, the mentality of the deaf or mute, 
even of the deafmute, is not placed by the Rabbis on 
the same low level as that of the insane. In many 
ways the deafmute were regarded legally competent. 
The Rabbis, then, recognised degrees of mental in- 
capacity. However, as to the mental alienation 
proper, they made no rigorous distinction between the 
feeble-minded and the insane. Maimonides has a 
distinct reference to monomania in a ruling to the 
effect that the monomaniac is incompetent even in 
matters concerning which he is rational. 15 We do how- 
ever find that the Rabbis attempted to define mental 
alienation by distinct criteria. These Rabbinic criteria 
are as follows: 16 "He who takes a solitary stroll by 
night (exposing himself to ghosts) ; he who spends the 
night in the cemetery; he who wildly tears his gar- 
ments ; or he who destroys everything given him." No 
trouble need be taken to compare these criteria with 



14 Cf. his Commentary on Terumoth I, 2 — where he says: 
"In our language, Cheresh means one who does not hear," 
which suggests that he was influenced by considerations of 
language, of terminology and definition. Note, however, Yad, 
Ishuth II, 26, where Maimonides uses the term "Mem" for 
the deafmute; and where, moreover, he says that the 
speaking-deaf and the hearing-mute are to be regarded as 
normal human beings. 

16 Maim. Yad, Mechirah IX, 9. 

"Chag. 3b. 



30 The Defective in Jewish Law and Literature 

the strict medical tests of our own time ; nor need the 
rabbinic test of insanity be taken too literally, the 
Rabbis having had in mind not so much specific criteria 
as types of action evidencing eccentricity of some 
sort. 17 The underlying principle, then, is eccentricity, 
which fully accords with the modern idea of mental 
aberration. 

Epileptics are characterised as: "Ittim shafui, ittim 
shoteh." They are classed with the insane during the 
fit ; with the normal, during their lucid intervals. 18 

Most tersely is the incompetency of these defectives, 
both deafmute and insane, expressed by the Mishnah 
in the following statement: "Yesh lahem ma'asseh 
ve-en lahem machashavah" — they are capable of 
action but not of thought. 19 In the Gemarah, however, 
not even this concession is made to them, R. Amai 
saying: 20 "Rov maassehem mekulkalim" — "their ac- 
tions are for the most part inefficient." 

Leaving out the blind, as requiring little comment, 
let these general considerations be concluded with a 
word about the sex-freaks. The rabbis regarded both 
Tumtum and Androgunos, but especially the latter, as 
"Biryah bifene 'atzmah" as a distinct creature. 31 
Tumtum is a kind of neuter in whom sex has not 
declared itself, but may at any time do so either in the 



"V. Kesef Mishneh on Yad, Eduth IX, 9: "Ledugma 
naktinhu." 

18 Rosh-Hash. 28a, where the term "chalim" is used for 
"shafui" — lucid, sane; Maim. Yad, Mechirah XXIX, 5. 

"Machshirin III, 8; VI, 1; Taharoth VIII, 6. 

2<>Chulin 26a. 

"Yevamoth 83a; 99b; Bikkurim IV, 5. 



The Defective in Jewish Law and Literature 31 

direction of masculinity or femininity; while Andro- 
gunos, or hermaphrodite, is a bisexual person, 
possessing for ever the characteristics of both male 
and female. 21 The Rabbis, commenting on the verse : 
"male and female created he them," maintain that the 
first human creature was an Androgunos. 2 * This is 
of some interest in view of the problem in biological 
evolution, whether the hermaphrodite or the dioecious 
state is the primitive one. 24 Finally, the sterile of both 
sexes are recognised by the absence of signs of puberty 
and, in addition, by a masculine voice in females and 
feminine voice in males. 25 

And now we may proceed to set forth in detail the 
status of the defective, both legal and religious. By 
legal status is meant their standing in secular matters, 
including marriage and divorce; by religious status, 
the extent of their participation in the religious life of 
the Jew. 

Legal Status 

(a) Chazakah 

Chazakah is the right of ownership by virtue of 
undisputed tenure for a definite length of time. The 

"Yevamoth 83b; Maim. Yad, Ishuth II, 24-25. 

23 A variant of this view is that Adam was a "du-partzufin" 
a kind of twin-creature, male and female grown together 
back to back, which was afterwards separated by the well- 
known operation; but the authorship of these two views is 
confused in the respective passages. V. Bereshith R. VIII; 
Vayikra R. XIV; Eruvin 18a; Berachoth 61a. 

24 Balfour, Comp. Embryol. Introd. p. 11. 

"Yevamoth 80b ; Maim. Yad, Ishuth II, 6. 



32 The Defective in Jewish Law and Literature 

deafmute and the insane are not allowed such pre- 
sumption of ownership by actual possession. 28 

(b) Zechiyah — Gifts 

The act of the acceptance of a gift constitutes a 
legal title thereto. This is called Zechiyah. In this 
sense, a man may also act as a proxy and receive 
property for others, the legal title thereto being estab- 
lished in their favor the moment the property is trans- 
ferred to him. Here a distinction is made between the 
insane and the deafmute. The insane can neither make 
nor receive gifts, nor yet can they accept property for 
others; whereas the deafmute can accept gifts for 
themselves, though they cannot make gifts nor receive 
them for others. A normal person, however, may 
receive gifts for insane. 27 

(c) Inheritance 

In seeming contradiction to the laws of Zechiyah, 
are the laws of inheritance. Both insane and deafmute 
may make and receive bequests. For the principle 
here involved is entirely different from that under- 
lying transfer of property. The right of inheritance 
does not involve a conscious transfer of property 
requiring legally competent agents; it is an inherent 
right, 28 working quite automatically; an inheritance, 
according to rabbinic terminology, "falls" to the heir. 
Hence the question of sanity is beside the point. The 



26Maim. Yad, To'en XIII, 2; Chosh. Mishp. 149, 18— based 
on Mishnah B. Bathra III, 3. 

27 Maim. Yad, Zechiyah IV, 6—7; Chosh. Mishp. 243, 14-16, 
based on Gittin 64b. See also Yad, Mechirah XXIX 1-4. 

28 Mishnah B. Bathra 126a; Maim. Yad., Nachaloth VI, 1. 



The Defective in Jewish Law and Literature 33 

only provision of the law is that in the case of an 
insane or deafmute heir, the court is to appoint a 
trustee or guardian to manage the estate. 29 All this, 
however, applies only to natural heirs, but not to the 
heirship of husbands, if either party to the marriage 
is deafmute. In such a case, if the wife is a deafmute, 
the husband cannot inherit her property, though he be 
normal ; but if the wife is normal and the husband is a 
deafmute, he can inherit her property. 80 The reason 
for this discrimination lies in the fact that the right of 
the husband to inherit his wife's property is not an 
inherent right as in the case of blood-relations. The 
latter inherit by virtue of Pentateuchal law, while 
husbands are entitled to the estate of their wives only 
by virtue of a Rabbinic ordinance. 31 The heirship of a 
husband, then, is in the nature of a deed implied in the 
marriage act. 32 Hence, in the case of deafmutes, there 
applies to the heirship of husbands not the law of 
inheritance but the law of Zechiya. Therefore, if the 
wife is deafmute, the husband cannot inherit her 
property, though he be normal, since the deafmute 
cannot effect a transfer of property ; but if the wife is 
normal, he can inherit her estate, though he be deaf- 
mute, since she, as responsible agent, can transfer her 
property ; and he as deafmute can, in keeping with the 



2 »Kethuboth 48a; Maim. Yad, Nachaloth X, 5 and 7; ibid., 
Mechirah XXIX, 3; Chosh. Mishp. 290, 1-27. 

aoMaim. Yad, Ishuth XXII, 4; ibid., Nachaloth I, 9. 

8a Kethuboth 84a; Maim. Yad, Nachaloth I, 8. Note also 
that the marriage of deafmutes itself is valid only by Rabbinic 
ordinance, which, however, cannot explain the fact that the 
deafmute husband of a normal wife is her heir. 

32 Note the familiar Rabbinic principles: "Kol dimekadesh 
ada'ata dirabanan mekadesh." 



34 The Defective in Jewish Law and Literature 

law of Zechiyah above set forth, receive property. 
On these same grounds, the husband cannot be heir to 
his wife's estate, if either party to the marriage be 
insane, since the insane can neither make nor receive 
gifts — apart from the fact that the marriage of the 
insane has barely any standing in the eyes of the law. 83 

(d) Sales 

The difference between the insane and the deaf- 
mute is most strikingly shown in the matter of the 
validity of sales. Sales or purchases by the insane, 
whether in chattel or real estate, are invalid ; while the 
commercial transactions of the deafmute and the 
speaking-deaf are valid in respect to movable goods 
but not in real estate. 34 The deafmute, we are told, 
buy and sell "birefnizah" by sign-language. 35 They 
should be, however, thoroughly examined as to 
whether they understand the nature of the deal, 38 
which again shows, that the rationality of the deaf and 
deafmute was questioned in every way. Indeed, this 
provision of the law is explained as a merciful con- 
cession, to enable the deafmute to procure a liveli- 
hood. 37 In this connection, the case of epileptics, too, 
receives consideration. The point to be ascertained in 



83 Yevamoth 112b, 113a; Maim. Yad, Nachaloth I, 10. 

s*Gittin 59a, 71a; Maim. Yad, Mechirah XXIX, 1-2; Tur 
Chosh. Mishp. 235, 17 and corresp. Shulchan-Aruch. 

36 In the Mishnah Gittin 59a, a distinction is made between 
"remizah" — gestures of the hand — and "kefitzah" — movements 
of the lips; and the former is held more reliable than the 
latter. 

86 Gittin 67b, 71a; Maim. Yad, ibid., Examination, however, 
was necessary in the case of the "Mem" too. 

"Gittin 59a; Maim. Yad, Mechirah XXIX, 1. 



The Defective in Jewish Law and Literature 35 

reference to their transactions is, whether these took 
place in their lucid moments or during the epileptic 
seizure. 88 

(e) Honor 

From a human standpoint the question is most in- 
teresting whether these defectives have any sense of 
personal honor and are, hence, entitled to damages 
for insult or defamation of character. Here again, 
the deafmute are entitled to damages, while the insane 
are not. 89 

(f) General Legal Standing 

The general standing of these defectives before the 
law, in other respects than above specified, is prac- 
tically nil. Not being considered responsible agents, 
they are not liable to damages for assault upon others, 
while others are liable to such for assault upon them. 40 
Neither their claims on others, nor the claims of others 
on them, are heard ; they are not sworn nor is an oath 
administered to others on their account. 41 Thus, they 
are practically without redress in money matters. Nor 
are they accepted as witnesses; be it noted, however, 
that in the case of the deafmute, this is more on 
account of technical disability than of mental incom- 
petency; hence, even the "Mem" who is otherwise 
considered mentally sound, is disqualified as a witness, 
since he cannot give testimony by word of mouth, as 



3*Rosh-Hash. 28a; Maim. Yad, ibid., 5. 
39 B. Kama 86b; Maim. Yad, Chovel III, 4; Chosh. Mishp. 
300, 37. 
*«B. Kama 87a; Maim. Yad, ibid, IV, 20. 
"Shevuoth 38b; Maim. Yad, To'en V, 9 and 12. 



36 The Defective in Jewish Law and Literature 

has already been set forth above. 42 Nor yet can they 
act as agents for others; but if they so act, the risk 
belongs not to him who employs them as intermediaries 
but to him who accepts them as such and entrusts aught 
to them. 48 

(g) Status of the Blind 

In contradistinction to these defectives, the Blind 
are given full legal rights, except that they cannot, 
on obvious grounds, serve as witnesses or as judges; 
but a one-eyed man may function as witness though 
not as judge. 44 Moreover, the blind cannot act as 
bringers of a Get from foreign parts, since they 
cannot comply with the technical requirement of de- 
claring : "Befanay nichtav" — It was written and signed 
"before" me. 48 

(h) Marriage and Divorce 

The principle underlying marriage and divorce 
between deafmutes or between deafmutes and normal 
persons is, that such marriages are valid only by 
Rabbinical ordinance and not by Pentateuchal law. 46 
Hence the wife in the case is entitled to neither keep 
nor Kethubah} 1 Both Marriage and Divorce, whether 



"General Considerations. 

* 8 B. Bathra 87b ; Maim. Yad, Sheluchin II, 2. 

"Niddah 50b; Maim. Yad, Eduth IX, 12. 

48 Gittin 23a, where the general disqualification by the 
Mishnah is modified by the Gemara to apply only to divorce- 
bills brought from "Chutz-laaretz." Maim. Yad, Gerushin 
VII, 19. 

"Yevamoth 112b; Maim. Yad, Ishuth IV, 9. 

47 Yevamoth 113a; Maim, ibid., XI, 4. This seemingly cruel 
provision is explained as facilitating the marriage of a deaf- 
mute woman. 



The Defective in Jewish Law and Literature 37 

she or he be deafmute, take place by Remizah — sign- 
language. 48 But if a deafmute man can write, he must 
give a Get. 49 Deafmutes, however, must be examined 
as to whether they understand the nature of the act. 50 

The Rabbis, however, have made no provision for 
the marriage of the feeble-minded and insane. 61 "Lo 
tikkenu lahen rabbanan nissuin." 

As to the special divorce regulations applying to the 
deafmute and the mentally defective, the following is 
to be noted : If a woman who was normal at the time of 
her marriage becomes deafmute afterwards, the hus- 
band has the alternative of either retaining or divorcing 
her; but if a man who was normal at the time of his 
marriage becomes deafmute afterwards, he cannot 
divorce her. 62 But if a woman who was sane at the 
time of her marriage becomes afterwards irrational, 
the husband cannot divorce her. In strict legality, he 
might divorce her as long as she has sense enough to 
take care of her Get; but the Rabbis have mercifully 
provided that he should never put her away, lest she be 
at the mercy of licentious men. 53 He may, however, 
marry another woman without being guilty of 
bigamy. 54 

The laws of Yibbum and Chalitza operate in the 



48 Mishna Yevamoth 112a; Gittin 59a; Maim. Yad, Gerushin 
88, 17. 

"Gittin 71a. 

°°Ibid. 

61 Yevamoth 112a: "En adam dar im nachash bichefifah 
achath — no man would take up his abode with a serpent." 
Maim. Yad, Ishuth IV, 9. 

"Yevamoth 112b; Maim. Yad, Gerushin II, 17. 

"Yevamoth 112b, 113b; Maim, ibid., X, 23. 

"Even-Haezer 119, 6. 



38 The Defective in Jewish Law and Literature 

case of these defectives in the following manner : Both 
deafmute and insane, male or female, can be parties 
to a levirate marriage, but not to the act of Chalitza.™ 
Hence the curious situation arises that a person who 
cannot contract an ordinary marriage, because of legal 
incompetency, can contract a perfectly valid levirate 
marriage, for the reason that the validity of the 
levirate marriage is rooted in the previous marriage 
of the sane brother. From this follows that the wife 
of an insane or feeble-minded person is subject to 
neither Chalitza nor Yibbum, 66 since her marriage has 
no legal standing. The wife of a deafmute, however, 
is regarded as being in the same case with all other 
women, since her marriage has some legal standing, 
and thus she can be a party either to Yibbum or to 
Chalitza. 67 How far the levirate marriage by defec- 
tives is valid, is shown by the fact that a deafmute 
cannot, after contracting a levirate marriage, divorce 
the wife so wedded, since the divorce by a deafmute 
man is not potent enough to undo a perfectly valid 
marriage. 88 If, however, he is normal and his levirate 
wife is deafmute, he can divorce her. 69 

The salient features of the law regulating the 
marriage of the sexually abnormal are as follows : In 
the case of sterility, the marriage is valid if contracted 
with the full knowledge of the defect; but if con- 
tracted in ignorance concerning the defect, the mar- 



"Yevamoth 112b; Maim. Yad, Yibbum VI, 3 and 6; Even- 
Haezer 172, 11 and 12. 

56 Yevamoth 96b; Maim, ibid., 8; Even-Haezer, ibid., 16. 
B7 Maim. ibid., 7. See comment by Maggid M. 
88 Yevamoth 112b; Maim, ibid., 3. 
69 Maim. ibid., 6. 



The Defective in Jewish Law and Literature 39 

riage is void. 60 A sterile man or woman is not subject 
to Yibbum and Chalitza. 91 A Tumtum may marry and 
be married, but such a marriage is of dubious 
validity ;" while an Androgunos can wed but cannot 
be wedded. 88 Neither is an Androgunos qualified for 
Yibbum and Chalitza, while a Tumtum performs the 
act of Chalitza but cannot contract a levirate 
marriage. 94 

Religious Status 

The deafmute and the insane have no place what- 
soever in the religious life. They stand without the 
pale of Judaism. "They are free from the duties, 
responsibilities and penalties" prescribed by our re- 
ligion.* 5 Nor are they granted the privileges of 
religion. They cannot officiate in any religious 
capacity: "enam motziin eth harabbim yede cho- 
votham."** They do not blow the Shofar, 87 nor do 
they lay an Eruv-te chumin.™ A slight exception is 
found in the case of Shechita, which is not to be 
performed by them tt lechatechila >> but which is none 
the less kosher if performed under the supervision of 



"Kethuboth 100b, 102b; cf. ibid 72b and Yevamoth 2b; 
Maim. Yad, Ishuth XXIII, 1-2; Even-Haezer 44, 4. 

"Yevamoth 24a, 79b; Maim. Yad, Yibbum VI, 1 and 8. 

"Bechoroth 42b; Yevamoth 72a; Maim. Yad, Ishuth IV, 
11; Even-Haezer 44, 5. 

"Yevamoth 81a; Maim. Yad, Issure-Biah I, 15. 

"Maim. Yad, Yibbum, VI, 2, 4, 8. 

"Rashi Chag. 3b. 

««Rosh-Hash. 29a. 

"Ibid. 

"Eruvin 31b. 



40 The Defective in Jewish Law and Literature 

competent persons. This, however, is but a post- 
f actum concession: "bedi-avad."** 

The religious status of the blind is a matter of some 
controversy in the Talmud, the opinion of R. Yehudah 
being oft quoted to the effect that the blind are free 
from religious duties; 70 but the final decision, regis- 
tered in the Codes, is that the blind are disqualified 
only to the extent of their inability to see. Hence a 
blind man may officiate as Chazan, but he may not read 
from the scrolls ; 71 because prayers may be recited by 
heart, while the Law must be read: "Devarim 
shebichtav i attah reshai leomeram 'al peh" 12 He 
must even observe Mitzvath Tzitzith, despite the com- 
mand, "ye shall see them," 78 because others can see 
the fringes. 7 * 

In connection with the religious disabilities of the 
insane and deafmute it is worthy of note that, accord- 
ing to one authority, 75 a father who has begotten an 
insane or deafmute child has thereby fulfilled Mitzvath 
Piryah-Verivyah. One might suppose that the bringing 
into the world of a religiously disqualified child does 
not satisfy the requirements of this religious law. In 
that well-known Midrash which tells how God con- 
sulted the angels as to whether He should create man, 
the angelic host ask the Creator: "What are the 



6 »Chulin 2a. 

™B. Kama 87a; Kiddushin 31a. 

"Megillah 24a; Maim. Yad, Tefillah VIII, 12; Orach 
Chayyim 53, 14. 

72 Gittin 60b; Orach Chayyim, ibid. 

"Num. xv, 39. 

T *Shabbath 27b; Maim. Yad, Tzitzith III, 7; Orach Chayyim 
17, L 

"Even-Haezer 1, 6: gloss by Isserles in the name of R. 



The Defective in Jewish Law and Literature 41 

potentialities of this odd creature ?" And God 
answers, "Tzadikkim — righteous men — will descend 
from him." 78 That is to say, the mission of humanity 
is spiritual, and it is only in the light of the spiritual 
destiny of mankind that the perpetuation of the race 
is exalted to a high plane. The Midrash even adds 
slyly that God revealed to the angels but half the 
truth, for had He revealed the other half, namely that 
unrighteous men too would descend from Adam, the 
Midath Haddin — the Attribute of Justice — would 
never have brooked the creation of man. Well, this is 
Aggadah. But the Halacha on the one hand dis- 
qualifies the child, and on the other hand declares 
itself satisfied with the father. Here one may already 
perceive the difference between the attitude of 
Halachah and Aggadah, of which more will be said 
presently. 

Before passing on to that phase of the subject, just 
a few words are in place about the disabilities of 
physically defective priests. These were put to menial 
work about the Temple, such as cleaning the kindling 
wood from worms, for which purpose a special cell 
was set aside called "lishchath ha'etzim." 17 When we 
read the long list of the physical disqualifications in 
Lev. xxi, we are strangely impressed with the fact 
that the least departure from bodily perfection unfitted 
a man for service at God's altar. The spiritual ministry 
of the priest was hedged in by exacting physical re- 
quirements. No less curious is the fact that the 



Solomon b. Aderet (end of 13th cent). 
™Bereshith R. VIII. 
"Midoth II, 5. 



42 The Defective in Jewish Law and Literature 

Hebrew language, though impoverished in many 
important respects, has preserved in this list as well 
as in both Tochechoth 78 so many words that describe 
unsightly malformations and loathsome diseases. We 
lack classic Hebrew terms for many of the beautiful 
sights and sounds of this world — for colors, flowers, 
trees, birds — but we do not seem to be wanting in 
terms that bring before us the seamy side of life, that 
echo the groans of the sufferers, that reflect the gloom 
of darkened lives. One is reminded of those old- 
fashioned books on theology that contained nine 
chapters on hell and only one chapter on heaven. 
Uppermost, it seems, in the human mind is the sinister 
aspect, the sitra achara, of existence. That aspect we 
are apt to exaggerate beyond all proportion; and, 
therefore, it becomes the business of the spiritually- 
minded thinker to reduce our morbid imaginings to 
their true measure, to turn our face toward the light, 
to show how in the divine scheme of things, light and 
shadow sing the same song of everlasting justice and 
mercy. 

The Aggadah 

That song was caught and set to human words by 
the Aggadah. 

While the Halacha coolheadedly accepted conditions, 
and dealt in a practical way with the grim realities of 
Subnormality, the Aggadah asked searching questions 
and dealt with the dim idealities of Subnormality. 

Now behind every question that the human intellect 



"Lev. xxvi, 16; Deut. xxviii, 20-22, 27-29, 34, 35. 



The Defective in Jewish Law and Literature 43 

ever asked there was an emotional crisis, a shock. 
And it behooves us to find out the nature of the 
shock that led the Aggadists to inquire into the causes 
of Subnormality, always bearing in mind that while 
the Halachah confines itself to adjusting the physical 
order unto itself, the Aggadah tries to adjust the 
physical order to a higher spiritual order. 

What, then, was the nature of this shock? On the 
physical side, it is not to be supposed that the sight 
of bodily imperfection left the Rabbis of the Aggadah 
altogether untouched. The Greeks had no monopoly 
in the high regard for the body beautiful. The Jew, 
too, appreciated bodily perfection. It would take one 
too far afield to enumerate all the passages in Bible and 
Talmud that show admiration for well-favored men 
and women. One example shall suffice. The Rabbis 
say that God takes pride in men of tall stature, 79 basing 
their statement on the verse: "And I have destroyed 
the Amorites before them, whose height was like the 
height of cedars and he was strong as the oaks." 80 
The Rabbis felt that this verse, though referring to 
the destruction of those remarkable specimens of 
stalwart humanity, still reflected the divine pride, as 
it were, in the tall and vigorous human frame. 

Nevertheless, while the Jew appreciates physical 
wholeness, the Jewish Genius is not primarily 
esthetical; it is essentially ethical. Hence we are not 
to expect that the shock which the Aggadists 
experienced when facing the phenomenon of Sub- 



™Bechoroth 45b. 
80 Amos ii, 9. 



44 The Defective in Jewish Law and Literature 

normality was an esthetic one, a rude jarring of their 
esthetic sensibilities; nor that the causes they sought 
to learn were of a physical nature. In conformity with 
the constitution of the Jewish Genius, the shock they 
experienced was an ethical shock, a painful upheaval 
of their moral being ; and the causes they searched for, 
in order to regain their own spiritual equilibrium, were 
accordingly of an ethical nature. Facing Subnormality, 
the Aggadists asked: How can such things be in a 
world presided over by a righteous God? 

In proof of this, it is to be noted that the general 
Rabbinic theory of human suffering is that it is caused 
by moral turpitude. "En yissurim beli avon" — no Sin, 
no Suffering. 81 In regard to Subnormality, however, 
the Rabbis are still more specific, assigning certain 
defects to certain definite immoral acts. Lameness, 
mutism, blindness and deafmutism in children are 
ascribed to various kinds of incontinence and un- 
chastity practised by parents during co-habitation." 
A judge who takes bribe will be stricken with blind- 
ness; 88 this view is of course based on the literal 
interpretation of the verse : "For the gift blindeth the 
wise." 84 Lastly, the Rabbis tell us that malingerers, 
who sham blindness or other defects in order to 
excite sympathy and receive undeserved bounty, will 
yet be stricken before they die with the very affliction 
they feign. 86 



81 Shabbath 55a. See also Berachoth 5a: "im roeh addm, 
yissurim bairn 'alav yefashpesh betna'assav;" and Gittin 70a: 
Sheloshah devarim makchishin kocho shel adam: pachad, 
derech, avon." 

82 Nedarim 20a. 

ssPeah 8, 9; cf. Kethuboth 105a. 

8 *Deut. xvi, 19. 

86 Peah, ibid., Kethuboth 68a. 



The Defective in Jewish Law and Literature 45 

It is thus that the Rabbis tried to trace the moral 
causes of Subnormality. It is thus that they en- 
deavored to fit the latter into the divine world-scheme. 
The defective is more or less guilty of sin, or at bes t 
was conceived in the sin of others. It is perhaps for 
this reason, that the Levitical laws were so scrupulous 
with regard to the physical wholesomeness of the 
priesthood. A seeming contradiction to this theory as 
to the moral causes of Subnormality is to be found in 
Ex. iv, 11. In this verse God answers Moses* com- 
plaint about his slight impediment: "Who hath made 
man's mouth, or who maketh the dumb, or the deaf, 
or the seeing, or the blind? Have not I the Lord?" 
According to the literal meaning, this verse refers to 
the innocent Moses. The philosophy reflected in this 
verse is that God in His inscrutable wisdom grants or 
withholds the faculties of the body regardless of the 
merit of the individual. This, then, would tend to 
upset the Rabbinic theory. But here again the Rabbis 
are true to themselves and exhibit their consistency to 
a striking degree. For this same verse, as explained 
by the Rabbis, assumes a different meaning, one that 
tends to support the Rabbinic view of subnormality. 
They say 86 that when Pharaoh wanted to have Moses 
put to death for killing the Egyptian, all his wise men 
became incapacitated : some of them went blind, some 
dumb, some deaf, and some lame. When Pharaoh 
issued the command to seize Moses, the blind could 
not see, the dumb could not speak, the deaf could not 
hear, and the lame could not run. Thus Moses 



"Shir-Hashirim R. VII. 



46 The Defective in Jewish Law and Literature 

escaped. Now, say the Rabbis, the verse in question 
refers to that incident. In other words, it refers not 
to the innocent Moses but to the guilty Egyptians. 

Facing the broken tabernacle of the body, the Rabbis 
recognised in the battered ruins the punishing hand of 
God. Therefore did the Rabbis prescribe special forms 
of benediction for those who happen to sight a 
defective or a physical freak. If the defect is con- 
genital, the beholder should say : "Blessed art thou, etc., 
who f ashionest thy creatures in strange ways ;" but if 
accidental, he should say: "Blessed be the righteous 
judge." 87 Nevertheless the Rabbis readily acknowl- 
edged that the light of God may shine forth brightly 
out of some of these broken shrines. Mention was 
already made of the story of the two dumb scholars 
who absorbed R. Jehudah's discourses. A further 
example in point is the familiar figure of the blind 
R. Shesheth whose extraordinary erudition is 
emphasized, 88 and whose acumen forms the subject of 
many a Rabbinical anecdote. 89 Lastly, the Rabbis say 
that Mephibosheth, son of Saul, of whom the Bible 
says that he was lame on both his legs, 80 was the 
teacher of David, by whom he was consulted on all 
occasions. 91 

If after what has been said, further corroboration 
be needed of the Aggadistic attitude towards Sub- 
normality, as here set forth, another Rabbinic story 



87 Berachoth 58b. 
88 Shevuoth 41b. 
8 »Berachoth 58a. 
90 II Sam. iv, 4. 
91 Berachoth 4a. 



The Defective in Jewish Law and Literature 47 

may be cited. This story makes it plain that the 
Rabbis were solicitous about bringing the phenomenon 
of Subnormality into harmony with God's creative 
plan. The story is that David said to God: "How 
manifold are thy works, O God, in wisdom hast thou 
made them all. 92 All that thou hast created in thy 
world thou hast made well, and wisdom is the best of 
all ; but Madness which thou hast created — how can it 
benefit the world ?" God answered, "To Madness dost 
thou object? Wait! thou wilt yet stand in need of it; 
nay more, thou wilt miss it and pray that I should give 
it unto thee." Here follows the account of David's 
coming to the court of Achish, King of Gath, from 
whence he escapes by feigning insanity. 98 In the 
Rabbinic version of this Biblical story, David in his 
extremity prays for the gift of madness, which is 
granted him for the moment. And the story ends with 
David's joyful exclamation, "How desirable is Mad- 
ness ! I will bless the Lord at all times, 94 in times of 
wisdom and in times of madness !" 95 

Insanity part of the moral scheme of God's 
world-government! 96 Truly, bold Fancy could ven- 
ture no farther in bridging the gulf that exists in the 
human mind between God's wisdom and men's woes ! 
Our Rabbis, in their optimism, did turn our faces 
toward the light, interpreting the dark riddle of life in 



» 2 Ps. 104, 24. 

93 I Sam. xxi, 13-16. 

»4p s 44 2 

»»Shocher-Tov 39; Yalkut II, 131. 

96 I feel it incumbent upon me to point out at this juncture 
that I have not taken into account the belief that insanity is 
due to "possession" by evil spirits, traces of which belief may 



48 The Defective in Jewish Law and Literature 

such a way that men of lesser knowledge and lesser 
faith may understand it and be comforted. 

Still more powerfully do the notes of comfort ring 
forth out of the words of the prophets of Israel. We 
need not be surprised that the prophets included in 
their cosmic vision the sad phenomenon of Sub- 
normality. For these men of God dealt as none other 
did with the seamy side of life. And though their soul 
was mainly troubled by the prevalence of moral evil, 
yet, as superlative incarnations of the Jewish Genius, 
they did not lose sight of bodily ills altogether. Both 
moral and physical defects, to their view, are inter- 
laced in that whimsical underweb which oft conceals 
from our limited ken the harmony and the beauty of 
God's world-pattern. Hence it is not at all astonishing 
that in their Vision of the End they foresaw the dis- 
appearance not only of Sin but also of Subnormality. 
And though some passages in which the prophets 
speak of the blind being made to see and the lame being 
made straight-limbed are open to figurative interpre- 
tation, 97 there is one passage in Isaiah 98 lending itself 
to none other than its primary, its literal construction, 
which contains the soothing promise: "Then the eyes 
of the blind will be opened, and the ears of the deaf 
will be unstopped. Then will the lame leap as an hart 
and the tongue of the dumb sing !" 

To sum up : — If the Rabbis of the Aggadah have a 



be found in the Bible, Rabbinic Literature, and particularly 
in the New Testament; nevertheless, I believe I am not 
mistaken in stating that I have, throughout my presentation, 
followed the main stream of Jewish thought. 

• 7 Isa. xxix, 18; xxxii, 4. 

• 8 Ibid., xxxv, 6. 



The Defective in Jewish Law and Literature 49 

philosophy of Subnormality looking towards its cause 
and origin, the Prophets have an Eschatology of Sub- 
normality, looking towards its end and final extinction. 
On the day when the crooked will be made straight 
and the desert bloom as a rose, both cause and effect 
of Subnormality will be done away with, both soul 
and body will be made whole. In the meantime, the 
Rabbis of the Halachah, being practical men, were 
right in dealing with a knotty human problem in a 
practical way. To be sure, the modern sociological 
investigator, searching for what is today called the 
social treatment of the Defective, will find in the 
Halachic treatment of these unfortunates results that 
are, from his standpoint, almost wholly negative. Of 
social treatment in the modern sense, the barest traces 
are to be seen in the appointment by the court of a 
guardian or trustee — more, however, as an adminis- 
trator of the estate of deafmute or insane than as an 
embodiment of society's wardenship over their person ; 
and, further, in the fact that marriage between insane 
or insane and normal was discountenanced, though not 
actually prevented. Society was not ready in those 
days to mete out proper social treatment to its sub- 
normal or abnormal members, either by way of pre- 
vention or cure. Men in those days left a great deal 
to God; and who can say, conscientiously, that even 
today they do not leave to Him much more than He 
expects them to ? Especially in view of our own social 
shortcomings, let us admit that, measured by the 
standard of those early days, the Rabbis of the 
Halachah had recourse to such practical measures as 
fitted into the mold of their own time. Thus our final 



50 The Defective in Jewish Law and Literature 

word about the Defective in Jewish Law and Litera- 
ture is, that if the Aggadists point the way to deep 
speculation and the Prophets to sublime inspiration, 
the Halachists point the way to effective service. 



Capital Punishment 
Among the Jews 

Rev. D. De Sola Pool, Ph. D. 



CONTENTS 



The Four Methods of Capital Punishment . 1 

(a) Stoning 2 

(b) Burning 6 

(c) Beheading 9 

(d) Strangulation 12 

Jewish Attitude towards Capital Punishment 15 

Rabbinical Modifications 21 

Legal Restrictions 25 

Practise and Theory 35 

Post-Talmudic Development 46 



CAPITAL PUNISHMENT 



In the following essay, an attempt is made at 
tracing the history of capital punishment among the 
Jews. From the Biblical period onwards, there took 
place a long and complex development of the prin- 
ciples, the methods and the application of capital 
punishment. 

The story of this development is contained chiefly 
in the Old and the New Testaments, Josephus, the 
Rabbinic writings and the Responsa of the Middle 
Ages. The following study, which is based on these 
sources, attempts to make clear what was the nature 
of this development. 

The Four Methods of Capital Punishment 

According to a saying of the Rabbis, nine hundred 
and three different methods of death have been created 
for man. 1 But Rabbinic jurisprudence recognised 
only four legal methods of inflicting death as the 
penalty for a capital crime, namely: stoning, burning, 
decapitation and strangulation. 2 One man, Yakim (or 



2 Ber. 8a, with reference to Ps. lxviii, 61. 
2 Mishna Sanh. vii, 1. 

53 



54 Capital Punishment Among the Jews 

Yakom), a nephew of Jose ben Joezer (2nd cent. 
B. C. E.), is said to have killed himself by all four 
methods at once. He first set up a beam from which 
he hung a noose. Then he arranged faggots at the 
foot of the gibbet, surrounded them with stones and 
set a sword with its blade pointing upwards in the 
stones. He then kindled the faggots and hanged him- 
self in the noose, the flames burned away the rope so 
that his body fell into the fire, and at the same time on 
to the stones and on the sword-blade. 3 

(a) Stoning 

In appraising the Jewish attitude towards capital 
punishment in general, it is necessary first to examine 
the history of these four methods of capital punish- 
ment among the Jews. 4 The first to engage our 
attention is Stoning (Sekilah). 

In Biblical and Rabbinic legislation, stoning is the 
punishment decreed for a number of transgressions, 
such as idolatry, Moloch worship, magic, necromancy, 
false prophesying, Sabbath desecration, blasphemy of 
God's Name, cursing of parent, and other crimes, 
seventeen in all, listed in the Mishna. 8 

Stoning was apparently the usual method of inflict- 
ing the death penalty in Biblical times whenever 
burning was not specifically called for. 6 It was 



3Gen. Rab. lxv, 22. 

4 This subject has been dealt with at length by A. Buechler, 
Monatsschrift f. Geschichte u. Wissenschaft des Judentums, 
1906, Vol. L. 

5 Sanh. vii, 4. 

«Compare Lev. xx, 10 with Deut. xxii, 24; and Num. xv, 35 
with Exod. xxxi, 14f, and xxxv, 2; Matt, xxv, 37; Luke 
xiii, 34. 



Capital Punishment Among the Jews 55 

carried out outside the camp or town or at the gate, 7 
by the people or mob, without any other ceremony 8 
than the casting of the first stone by the witnesses. 9 

In post-Biblical times, we find that according to 
John x, 31, "the Jews took up stones again to stone" 
Jesus. According to Acts vii, 57f, Stephen, the proto- 
martyr of the Church, was stoned, but whether by the 
uprising of the mob or by judgment of the court, is not 
clear. 10 According to Luke xx, 6, the chief priests 
and the scribes and elders feared to suggest that John 
the Baptist was not a prophet, because if they did so 
"all the people will stone us." In a passage which is 
admittedly a Christian interpolation in Josephus, we 
are told that the Sadducean high priest Anan (62 C. E.) 
removed James, the brother of Jesus, and some others 
by stoning, after a semblance of a legal trial. 11 

In the Rabbinic literature also, there are incidental 
references to actual cases of stoning, which may seem 
to imply that in the earliest Rabbinic period lapidation 
was carried out in the simple manner described in the 
Bible. In the Mishna, 12 it is stated that a priest who 
ministered in the Temple in a state of ritual impurity 
was beaten on the skull by the young priests, with 



7 Lev. xxiv, 14, 23; Num. xv, 35 f; Deut. xvii, 5; xxi, 19ff; 
xxii, 24; Acts vii, 58. 

8 Lev. xxiv, 16; Num. xiv, 10; Deut. xxi, 21; xxii, 21; I Sam. 
xxx, 6 ; I Kings xii, 18 ; xxi, 10, 13 ; II Chron. x, 18 ; xxiv, 21 ; 
Exod. xvii, 4; viii, 22; Josephus, War I. xxvii, 6; Antiq. XVI, 
xi, 17; XVI. x, 5. 

9 Deut. xvii, 7. 

10 Overbeck, Apostelgeschichte, 114; J. Juster, Les Juifs dans 
VEmpire Romain, II, 138, note 2; Schuerer, II, 262. 

^Antiq., XX, ix, 1; Schuerer (4th edit.), I, 581. 

12 Sanh. ix, 6. 



56 Capital Punishment Among the Jews 

blocks of wood. 18 In early Rabbinic times, the death 
penalty by stoning was undoubtedly carried out. Rabbi 
Eleazar ben Jacob (1st cent. C. E.) states that as an 
exemplary measure, the Jewish court (Beth Din) in 
Grecian days, imposed the sentence of stoning on one 
who rode on horseback on the Sabbath. 14 Tosefta 
Sanhedrin ix, 5, mentions a definite case of a man 
going out to be stoned. Tradition states further that 
Ben Satda, later wrongly identified with Jesus 15 , was 
stoned. 16 The Beth Din in Jerusalem is also said to 
have inflicted the death penalty by stoning for a case 
of apparent incest and for another gross crime. 17 
But whether any of these cases of stoning was carried 
out in the Pharisaic method of precipitation described 
in the Mishna Sanhedrin vi, 4, is not clear from the 
sources. 18 

It may be asked what basis there was for the 
Pharisaic modification of lapidation to precipitation. 
In a war with Edom, captive Edomites were killed by 
being precipitated from a rock. 19 Two Jewish mothers 
who had circumcised their children during the persecu- 
tions of Antiochus Epiphanes are said to have been 
killed by being hurled from the wall of the city. 20 The 



"Compare Tosefta Kelim i, 6; Josephus, War, I, xxvii, 6. 

"J. Chag. II, 14, 78a; Sanh. 46a. 

18 Tos. Sabb. 104b; Chajes in Hagoren, IV, 33-37; Zucker- 
mandel, Gesam. Aufsaetze, II, 193. 

"Sanh. 67a; Tos. Sanh. x, 11; J. Sanh. VII. 2, 25d top. 

"Kid. 80a ; Git. 57a. 

"Buechler loc. cit., p. 691, doubts whether the method of 
precipitation was ever legally used. 

"II Chr. xxv, 12. 

20 II Mace, vi, 10; but Josephus, Antiq., XII. v, 4 says that 
they were crucified and then strangled by having their children 
hung round their neck. 



Capital Punishment Among the Jews 57 

false witnesses who accused Susanna were similarly 
dealt with. 21 The gospel according to Luke relates 
that the people of Nazareth wished to cast Jesus 
headlong from the brow of the hill whereon their city 
was built. 22 Precipitation was therefore a well recog- 
nised modification of lapidation, and not a sheer 
invention of the Rabbis. 

A similar modification was very early introduced in 
the treatment accorded to the scapegoat. Instead of 
the scapegoat being sent forth into the wilderness, as 
the Bible describes, 23 it was in practise precipitated 
from a rock. Similarly, the Pharisaic tradition early 
substituted precipitation for stoning in the case of 
human punishment. According to a convincing 
emendation of a Talmudic text suggested by L. 
Ginzberg, 24 precipitation had taken the place of lapida- 
tion at least as early as the time of R. Jochanan ben 
Zaccai, (fl. 75 C. E.). 

The Rabbis held lapidation to be the most severe of 
the four death penalties, and precipitation was regarded 
as a humane modification of it. The Mishna states 
that the victim was thrown from twice a man's height, 
i. e., about 1 1 feet. But if you wish to ensure a certain 
and easy death, asks the Talmud, why not cast him 
from a greater height? The answer is given because 
that would lacerate the body. 25 The words "his blood 



21 Susanna 62, LXX text. 

22 Luke iv, 29. 

23 Lev. xvi, 22. 

"Students' Annual, 1914, pp. 146, 147. I gladly take this 
opportunity of acknowledging my indebtedness to Prof. 
Ginzberg who read this essay in manuscript and gave me 
valuable suggestion on many points. 

25 Sanh. 45a bottom. 



58 Capital Punishment Among the Jews 

shall be on him" 26 were taken as implying that he shall 
be so killed that the blood shall remain in him. The 
change in method advocated by the Pharisees therefore 
seems to have had for its purpose the desire to make 
the death more humane, certain and speedy, and to 
preserve the body so far as possible from being 
mangled. The custom of giving to the one condemned 
a wine compounded with myrrh to dull the senses, 27 
would be another expression of this desire to rob the 
punishment of its horror and pain. 

(b) Burning 

The second death penalty, that of Burning 
(Serefah), is prescribed by the Biblical law for a 
priest's daughter who commits adultery, and for the 
crime of incest with mother and daughter. 28 The house 
of the guilty may also have been burnt. 29 There is no 
reason to doubt that this punishment in Biblical times 
involved the actual burning of the living victim. 30 

In post-Biblical times, we find that on March 13, 
4 B. C. E., Herod burnt alive Matthias and his com- 
panions who had pulled down the golden eagle set up 
over the gate of the Temple. 31 But this was the act of 
a despotic monarch and not of a court of law. Josephus 
reports about himself that the Galilean mob regarded 



2«Lev. xx, 9, 11, 12, 13, 16, 27. 

27 Sanh. 43a; Mark xv, 23; Matt, xxvii, 34; Prov. xxxi, 6. 

28 Lev. xxi, 9; xx, 14; Cf. Gen. xxxviii, 24 (Tamar) and 
Josh, vii, 15, 25 (Achan). 

2 »Jud. xii, 14, 15; Josh, vii, 15, 24; Josephus, War, II. xxi, 
3, 7. 

30 Josephus, Antiq., IV, viii, 23, to Levit. xxi, 9. Compare 
Dan. iii, 6. 

31 Josephus, Antiq., XVII, vi, 4; War, I, xxxiii, 4. 



Capital Punishment Among the Jews 59 

him as a traitor, and some cried out to stone the traitor 
and others to burn him. 82 This also would have been 
the act of a passionate populace in wartime, and not a 
legally imposed punishment. But there is one well 
attested instance in early Rabbinic times of an actual 
burning by decree of a court of law. This was re- 
ported by Rabbi Eleazar ben Zadok (fl. c. 100 C. E.), 
who said that as a young child he had seen the 
adulterous daughter of a priest bound around with 
vine branches and burnt. 83 His fellow Rabbis, repre- 
senting the Pharisaic tradition, declared that such a 
course of action involving a literal burning, could have 
been carried out only by an unlearned court (Mishna), 
or, according to R. Joseph, by a Sadducean court. 84 
The Book of Jubilees, which is also Sadducean in its 
Halacha, prescribes burning for the marriage of a 
Jewess with a non-Jew, for adultery and incest. 85 

But the Pharisaic tradition, as is well known, 
mitigated the severity of the punishment by changing 
it into strangulation followed by a slight, almost 
symbolic burning of the throat and inward parts. 88 
The reasons for the change of method are apparently 
the same as in the case of stoning, first, the desire to 
rob the death of its pain 87 , and secondly, to avoid 
marring the body. 



**War, II, xxi, 3. 

33 Mishna Sanh. vii, 2; Tos. Sanh. ix, 11; J. Sanh. VII, 24b; 
B. Sanh. 52b. 

3*Sanh. 52b. 

"Jubilees xxx, 7; xx, 4; xli, 25, 26. For the Pharisaic view 
of the application of this penalty, see Mishna Sanh. ix, 1. 

36 Mishna Sanh. vii, 2. R. Jehudah while upholding this 
method suggests a modification of the procedure. 

"Tos. Sanh. ix, 11. 



60 Capital Punishment Among the Jews 

This latter reason is emphasized in the statement of 
Rab Mathna in the Talmud 38 , that the modification in 
the method was approved so that the breath of life 
should be burnt out and the body preserved, as was 
supposed to have been the case with the sons of 
Korah. 39 Rabbi Eleazar adduces the same reason, 
referring to the case of the sons of Aaron. 40 The 
Tannaitic tradition held that Nadab and Abihu met 
their death through two narrow tongues of flame 
coming forth from the holy of holies, each dividing 
into two and entering into the nostrils of the two men, 
thus burning out the breath of life and leaving their 
clothes and their bodies uninjured. 41 Similarly, the 
Syriac Apocalypse of Baruch says that Sennacherib's 
army was burnt by God only within their bodies. 42 
This statement reflects the Midrashic tradition that 
because Shem covered his father's nakedness, the 
clothing of his Jewish descendants Nadab and Abihu, 
and of his non- Jewish descendants composing Senna- 
cherib's army, was not burnt when the fire of the Lord 
burnt out their lives. 43 

In all this is emphasized the Pharisaic desire to 
preserve the body of the victim uninjured. According 
to R. Joseph, who declared that a court which sentenced 



S8 Sanh. 52a. 

89 Num. xvi, 35. 

*°Lev. x, 2, 6. Sifra ed. Weiss ibid., 45c, 34; 46a, 41; 
Tosafoth Sanh. 52a. 

41 Sanh. 52a; Sifra 45c, 34. But contrast Josephus Antiq., 
Ill, viii, 7, who says that their faces and breasts were burnt. 

* 2 Baruch lxiii, 8 ; Susanna 62, LXX text, says that fire from 
heaven burnt the false witnesses after they had been 
precipitated. 

"Lekach Tob to Noach IX, 23 ; Tanhuma Noach 21, p. 25b, 



Capital Punishment Among the Jews 61 

to an actual burning must have been a Sadducean 
court, 44 this consideration was not of weight with the 
Sadducees. It has been suggested therefore, that this 
desire of the Pharisees may have been connected with 
their belief in the resurrection of the body, a belief 
rejected by the Sadducees. 45 

The method of burning advocated by the Pharisees 
does not seem to go back beyond the Christian era. 
The incident of the actual burning of the priest's 
daughter, witnessed by Rabbi Eleazar ben Zadok 
shortly before the fall of the Temple, might be inter- 
preted as implying that the change in method was then 
taking place. 46 There is no mention in the sources of a 
case of burning being carried out in the Pharisaic 
manner, although the full details preserved in the 
Mishna, describing the application of the method, 
would imply that the method had been in use. But 
the number of cases of the possible application of the 
penalty was limited, and a burning must have been a 
rare occurrence. 

(c) Beheading 

The third legal capital punishment recognised by 
the Rabbis is Beheading (Hereg). Death by the 
sword, although recognized in a blood feud and often 
used by kings, 47 is nowhere mentioned in the Bible as 



"Sanh. 52b. 

«N. Bruell, Beth Talmud, 78, quoted by Buechler /. c. 558, 
note 1. 

46 Notice also the contradiction between Josephus' account 
of the burning of Nadab and Abihu and the Pharisaic tradition 
referred to above, note 41. 

«*E. g. II Kings x, 7. 



62 Capital Punishment Among the Jems 

a penalty ordered by law, except for the apostasy of a 
whole community. 48 According to the Mishna, 49 
murder also is punished by beheading. The Boethu- 
sians, 50 the Samaritans, 51 Philo, 52 Jesus, 53 Josephus, 54 
the Book of Jubilees, 55 Eliezer ben Hyrcanus, 
(1st cent. C. E.), 56 like the later Karaites, 57 all agree 
in recognizing the Biblical talio as the punishment for 
murder. This does not necessarily imply that the 
method of inflicting the death penalty had to be the 
same as the method used by the murderer. It implies 
only that murder was punishable by death. 

The Pharisaic ruling that the death penalty for 
murder was inflicted by decapitation is not disputed 
by any of the Rabbis. 58 But the method of the 
execution is debated. The Mishna states that the 
victim's head was cut off at the throat with a sword, 
as the (Roman) government carried out an execution. 59 
R. Jehudah (135-220 C. E.) objected that this jus gladii 
would disfigure the victim. 60 He therefore advocated, 
that instead of the old method recognized by the 
Rabbinical tradition, the murderer's head should be 



48 Deut. xiii, 13-16. 

49 Sanh. ix, 1 ; Mechilta to Exod. xxi, 12. 
50 Scholion to Megillath Taanith 4. 

B1 Revel, Jew. Quart. Rev., New Series, III, 364, note 86. 
52 Ritter, Philo und die Halacha, 18ff. 
63 Matt. v, 38; see also xxvi, 52. 
* 4 Antiq., IV, viii, 35. 
B5 Jubilees iv, 32. 
56 Baba Kamma 84a. 

87 Revel, Jew. Quart. Rev., New Series, III, 364-366. 
68 Mechilta 83b to Ex. xxi, 20. 
89 Sanh. vii, 3. 

eo Similarly Baba Bathra 8b, Death by the sword is worse 
than a natural death because it disfigures. 



Capital Punishment Among the Jews 63 

placed on a block and chopped off at the neck with an 
ax. The Rabbis protested that this method of be- 
heading advocated by R. Jehudah would be far more 
shameful to the victim than that common to the Jews 
and the Romans. R. Jehudah admitted the force of 
their objection, but defended the method advocated by 
him because it was not the same as Roman custom. 
The Talmud then proceeds to eliminate other possible 
methods of killing by the sword, such as piercing or 
cleaving the body, by quoting the principle of the 
golden rule "Thou shalt love thy neighbor as thyself." 61 
Therefore we must choose for him the easiest death. 
The comparison is then brought with the heifer that 
was killed to atone for bloodshed. 62 As the heifer, 
the substitute for the unknown murderer, was killed 
by having its throat cut, so the known human murderer 
had his throat cut and not his head chopped off at the 
neck, the golden rule again being quoted as authority. 68 
In this case also the sources do not mention an 
actual case of decapitation being carried out by a 
Jewish court. According to the New Testament, 
Herod Antipas had John the Baptist killed by be- 
heading, 64 and Agrippa I. caused James the apostle, 
the brother of John, to be killed by the sword. 65 But 



"Lev. xix, 18. 

« 2 Deut. xxi. 

« 3 Sanh. 52b; Mechilta 83b to Exod. xxi, 20; J. Sanh. VII, 
24b. Also Genesis Rabba 44 beginning, and the legend of the 
neck of Moses becoming hard as marble before the sword of 
Pharaoh. J. Berachoth, ix, 1 (where the exact phrase used by 
the Mishna occurs) ; Exod. Rab. 1 to Exod. ii, 15. 

"Matt, xiv, 10 ; Mark vi, 27 ; Luke ix, 9. Cf . the interpola- 
tion in Josephus, Antiq., XVIII, v, 2. 

"Acts xii, 2. Cf. Rev. xx, 4 of the Christian martyrs. 



64 Capital Punishment Among the Jews 

neither of these executions was ordered by a Jewish 
court of law. 

(d) Strangulation 

The fourth method of capital punishment recognised 
in Pharisaic tradition is Strangulation (Henek). 

Strangulation does not appear in the Bible as a 
recognised legal method of punishment. The only 
Biblical instance of death by strangulation is the 
suicide of Ahitophel. 66 

The Mishna 67 specifies strangulation as the punish- 
ment for the son who purposely wounds his parent, 
for the false prophet, for the one who prophesies in 
the name of idolatry, for stealing a Jew, for adultery 
with a married woman, seducing a priest's betrothed 
or married daughter, etc. It was the method of capital 
punishment preferred by the Rabbis; for R. Yoshia 
said that wherever the Bible does not specify the 
method of carrying out the capital sentence, strangula- 
tion should be adopted because it is the least severe 
measure. Rabbi Jonathan also said that strangulation 
should be adopted, even though in his judgment 
strangling is not an easier method of death than other 
methods. 68 The reason for this preference seems to 
be because of the four legally recognized methods of 
capital punishment, strangulation as it was carried 
out was the only one which left the body practically 
uninjured. The condemned man was to be sunk up to 



66 II Sam. xvii, 23; Cf. I Kings xx, 31 "ropes upon our 
heads." Tobit ii, 3 (Strangulation). 
67 Sanh. xi, 1. 
« 8 Sanh. 52b bottom; Sifra 92a, 11. 



Capital Punishment Among the Jews 65 

his knees in mud and then strangled by having a hard 
cloth which was wrapped in a soft one twisted around 
his neck and pulled in opposite directions until the 
suffocated victim died. 69 Strangulation therefore 
satisfied the Rabbinic desire to avoid marring the body 
far better than did stoning, burning or decapitation. 
R. Jehudah explains that the death penalty as inflicted 
by man should be like that inflicted by God in not 
injuring the human body. 70 This consideration it was, 
also, as we have seen, that played a large part in in- 
ducing the Rabbis to mitigate the method of burning, 
by reducing it to strangulation followed by an almost 
symbolical burning. 

Again, in this case, the sources do not mention any 
definite case in which the punishment of strangulation 
was actually carried out as a result of a court judg- 
ment. But it is clear that strangulation induced in 
the older manner of hanging was not infrequently 
consummated in the earlier Rabbinic period. Raguel's 
daughter Sarah "thought to have hanged herself." 71 A 
proverbial remark in the mouth of Rabbi Akiba (d. c. 
132 C. E.), 'if you wish to strangle yourself, hang 
yourself on a high tree', 72 would indicate that hanging 
was a well recognised method of death. According to 
one source, Judas Iscariot hanged himself. 73 It is 
reported by Rabbi Eleazar, 74 that Simon ben Shetach 
(fl. 80 B. C. E.) hanged women in Ascalon. But in 



69 Mishna Sanh. vii, 3. 

™Sanh. 52b; Sifra 92a, 11. 

71 Tobit iii, 10. 

"Pes. 112a bottom; cf. Semachoth II, 3. 

73 Matt. xxvii, 5. But see the different story in Acts i, 18. 

74 Mishna Sanh. vi, 4. 



66 Capital Punishment Among the Jews 

this case the question arises whether they were hanged 
alive or hanged as a reproach after they had been 
otherwise killed. 

Hanging, according to Biblical custom, was meted 
out to the dead body of one who had been otherwise 
killed. The order of the words in Deut. xxi, 22, 23 
implies, that first the malefactor has been put to death, 
and then as an added indignity his corpse is suspended. 
The same treatment of hanging the corpse was meted 
out to the murderers of Ishbosheth. 75 Similarly, Joseph 
tells the chief baker that in three days Pharaoh will 
take off his head and then hang his dead body. 76 The 
dead bodies of Saul and Jonathan were hung up by the 
Philistines. 77 The five kings were first killed by 
Joshua and then hanged. 78 A momentary hanging of 
the corpse was recognised by the Rabbis in the case of 
the male idolator or blasphemer. 79 From these 
examples of Jewish custom and from the context in 
the Mishna and Talmuds, it becomes clear, that the 
witchcraft victims of Simon ben Shetach's zeal, were 
hanged in ignominy after the death penalty had been 
otherwise inflicted. In any case, the discussion in the 
Mishna and the Talmud 80 shows that the action of 
Simon ben Shetach was an exceptional action, from 
which no conclusion as to the regular course of law 
could be drawn. There is consequently no evidence of 



"II Sam. iv, 12. 
"Gen. xl, 19. 
"II Sam. xxi, 12. 

"Josh, x, 26. But in Persia, the victim may have been 
hanged alive, as the book of Esther seems to imply. 
"Mishna Sanh. vi, 4; Sanh. 46b; J. Chag. II, 78a. 
*<>Sanh. 46b. 



Capital Punishment Among the Jews 67 

hanging alive ever having been carried out by a judicial 
sentence of the Rabbis. It need scarcely be added that 
the Roman punishment of crucifixion was a penalty 
unknown to Jewish law and abhorrent to Jewish 
feeling. The inhuman savageness shown by Alexander 
Jannaeus in crucifying his prisoners of war was no 
more a legally recognised form of capital punishment 
than was his cutting the throats of the wives and 
children before the eyes of the crucified victims. 81 

Jewish Attitude Towards Capital Punishment 

Having summarized the history of the four methods 
of legal capital punishment recognised by the Jews, 
we are now in a position to review more broadly the 
question of the Jewish attitude towards capital 
punishment. 

The Hebrew Bible undoubtedly stands for the prin- 
ciple of capital punishment, as has clearly emerged 
from the detailed consideration of the particular 
methods of inflicting the death penalty set forth above. 
In Biblical times, when the organization of Jewish 
society was comparatively simple, retributive justice 
brooked few of the law's delays. In the simplest and 
most rapid manner, the avenger of blood exacted the 
penalty of life for life. Society protected itself by a 
swiftly effective punishment. 

But the Bible recognises in capital punishment also 
a deterrent character and an expiatory character, in 
addition to its retributive character. It holds capital 
punishment to be a necessity as a deterrent. The phrases 



"Josephus, War, I, iv, 6. 



68 Capital Punishment Among the Jews 

"and thou shalt remove the evil from thy midst," "and 
Israel shall hear and understand and no more do this 
evil," which occur many times, coupled with the 
admonition to impose capital punishment, show that 
this preventive purpose was closely associated with the 
imposition of the death penalty. Malicious false 
witnesses had to be treated as they would have treated 
the one against whom they had testified, so that the 
public should take warning. 82 

The Bible also teaches explicitly that capital punish- 
ment is the just punishment for murder, in order to 
atone for the pollution of the land. 83 No pity was to 
be shown to the wilful murderer. 84 The right of 
sanctuary granted to the one guilty of manslaughter, 
was not granted to the murderer, 85 and the crime of 
shedding innocent blood had to be atoned for in order 
to cleanse the sacred community of Israel. 86 

Yet the old Testament teaching of justice is tem- 
pered by mercy. "But if the wicked turn from all his 
sins ... he shall surely live, he shall not die . . . Have I 
any pleasure in the death of the wicked ? saith the Lord 
God ; and not rather that he should turn from his way 
and live." 87 It was a duty to try to save those going to 
death. 88 

The New Testament also admits the right of society 



82 Deut. xix, 16-21. Cf. also Deut. xiii, 12, xvii, 13, xxi, 21 of 
the rebellious son, where the deterrent nature of the punish- 
ment is again specifically mentioned. 

83 Num. xxxv, 33; Deut. xix, 13. 

84 Deut. xix, 11-13. 

85 Exod. xxi, 14; Num. xxxv, 11, 12. 

86 Exod. xxi, 13. 

87 Ezek. xviii, 21-23; xxxiii, 14-16, 19. 

88 Prov. xxiv, 11-13. 



Capital Punishment Among the Jews 69 

to exact capital punishment. 89 We have seen that 
Philo, Josephus 90 and the apocryphal and apocalyptic 
books also do not doubt the reasonableness and neces- 
sity of capital punishment. In the last pre-Christian 
century, the Jewish people, particularly the Sadducees 
who were in the ascendant, still followed the Bible in 
their maintenance of the theory and the practise of 
capital punishment. The letter and the spirit of the 
Biblical laws governed Jewish practise. But in the first 
post-Christian centuries, these teachings of the Bible 
were modified in many directions. 

It may be safely affirmed that the Rabbis did not 
question the right of society to inflict capital punish- 
ment, even though they pictured God as grieving over 
the death of the wicked. 91 In the Mishna, they 
enumerated thirty-seven crimes (nineteen of morals, 
twelve of religious law, three against parents and three 
assaults), which they held to be punishable by death. 
In commenting on the Biblical warning "thine eye 
shall not spare the wilful murderer," they say 'thou 
shalt not say wherefore should I punish murder by 
murder. The one whom thou knowest indubitably to 
be guilty of a premeditated murder thou shalt not pity 
nor spare.' 92 The sternness of the capital sentence was 
recognised by the Rabbis as being in the best interests 
both of the criminal and of society. 98 "When the 



89 Matt. xy, 4; xxvi, 52; John xix, 10, 11; Acts xxv, 11; 
Romans xiii, 1-14. 

90 Cont. Apion., II, 31, "the punishment for most sinners is 
death." Antiq., IV, viii, 35. 

91 Mishna Sanh. vi, 5. 

92 Sifre to Deut. xix, 13. Cf. Deut. xiii, 9 of the seducer to 
idolatry. 

98 Mishna Sanh. viii, 5. 



70 Capital Punishment Among the Jews 

wicked perish there is joyful shouting," was quoted in 
justifying the death penalty, to convince those who 
hesitated to help bring a capital offender to justice. 94 
R. Akiba declared that so long as sinners such as 
Achan remain alive, the Divine anger rests upon the 
community. But when they are put to death, the 
Divine favor is restored. 95 The noxious thorns in the 
garden of humanity must be destroyed. 96 When Akiba 
(d. c. 132 C. E.), claimed that had he been a member 
of the Sanhedrin, a death sentence for murder or 
immorality would never have been imposed, Rabbi 
Simon ben Gamliel retorted "had you been a member 
of the Sanhedrin, you would have been responsible for 
the increase of murders." 97 

The Rabbis also approved of the preventive char- 
acter of the Biblical death penalty. For instance, the 
death penalty for the rebellious, gluttonous son, is 
regarded by them not as a punishment commensurate 
with the wrong that the son may have committed, but 
as a preventive measure, necessary for society and 
necessary for the criminal. In explaining why the son 
must pay the penalty of death even though he has not 
spilled blood nor committed any major offence, they 
say that the Torah looks ahead. Let him die before he 
has incurred graver guilt ; otherwise he will sink lower 
and lower until finally he commits a capital offence. 
Therefore he should be put out of the way as a pre- 



84 Prov. xi, 10; Mishna Sanh. iv, 5. 

85 Mishna Sanh. x, 6 end, with reference to Josh, vii, 1 and 
vii, 26. 
98 Genesis Rabba 44 to Gen. xv, 1. 
87 Mishna Mace, i, 10; Mace. 7a, Tosafoth. 



Capital Punishment Among the Jews 71 

ventive measure. 98 Although we immediately see the 
danger lurking in such a principle of preventive pun- 
ishment, the recognition of this principle by the Rabbis, 
is further evidence that in theory they approved of the 
death penalty. 

Furthermore, the Rabbis approved of a fitting 
retribution. Biblical justice demands that the punish- 
ment correspond with the crime. He who digs a pit 
should fall into it." The Psalmist prays that God may 
repay the wicked according to the works of their 
hands. 100 The Rabbis recognise this principle of 
retribution in kind in every phase of life. 101 The 
principle underlying the talio is that which they call 
"measure for measure." 102 Bloodshed, according to 
this principle, could be expiated only by bloodshed. 108 

The Rabbis also saw in the death penalty an expia- 
tion of the sin that had been committed. This supreme 
expiation was religious in character, and was brought 
into connection with the Temple and its sacrificial 
worship. Thus it is stated that only so long as the 
altar stood, 104 or the priest officiated, 106 could the 



98 Mishna Sanh. viii, 5 ; Sanh. 72a ; Sif re to Deut. xxi, 18-21. 
It must be remembered that this case is purely theoretic. See 
text to notes 214 and 215. 

"Ps. vii, 16f ; Eccl. x, 8f ; Prov. xxvi, 27; Ben Sira xxvii, 26. 

100 Ps. xxviii, 4; Isa. iii, 10, 11; Job xxxiv, 11; Obad. 15; 
Lev. xxiv, 19; Prov. xxiv, 29; Jer. 1, 29. 

101 Aboth ii, 7; Sota i, 8; Num. Rab. xviii, 18; Sota 8a, 11a; 
Pes. 28a ; Baba Kamma 92a. 

102 Sanh. 100a, bottom ; Mishna Sota i, 7. 

103 Gen. ix, 6, which is not necessarily meant originally as a 
legal principle, but which is used by the Rabbis as such, 
Sanh. 57b. Cf. Matt, xxvi, 52; Sanh. 72b. 

104 Mechilta de R Simon, p. 126, with reference to Exod. 
xxi, 14. 

105 Sanh. 52a with reference to Deut. xvii, 9; Maimonides 
Hilch. Sanh. xiv, 11. 



72 Capital Punishment Among the Jews 

death penalty be carried out. 106 According to the 
opinion of R. Akiba, 107 a capital sentence on "a defiant 
elder" could not be consummated outside of Jerusalem, 
nor even in Jabneh by the great Sanhedrin, while the 
Temple still stood; but he should be brought to 
Jerusalem and put to death on one of the middle days 
of the next festival when the city and the Temple 
were thronged with worshippers. Those condemned 
to death were given the opportunity to confess their 
sins when within ten cubits of the place of execution, 
the confession opening for them the gates of the 
future world. 108 It is related of one condemned man 
that when bidden confess he prayed "May my death be 
an atonement for all my sins". . , 109 If the condemned 
man was unable to confess fully, he was bidden say 
"May my death be an atonement for all my sins." 110 

These four considerations, (a) the plain command 
of the written word of the Torah, (b) the recognition 
of the deterrent and preventive value of capital 
punishment, (c) the claims of just retribution and (d) 
the recognition of the expiatory character of the death 
penalty, leave it beyond doubt that the Rabbis approved 
of the theory of capital punishment. They accepted 
without question the teachings of the Torah, implying 
the justifiability of imposing the death penalty. At the 
same time, numberless passages testify to the sacred- 



106 The Jewish courts outside of Palestine were considered 
as having jurisdiction in capital cases only so long as the 
great Sanhedrin continued to hold its sessions in the special 
hall of the Temple. Mishna Mace, i, 10. 

107 Mishna Sanh. xi, 4 in connection with Deut. xvii, 13. 

108 Mishna Sanh. vi, 2 ; Sif re Zutta to Num. v, 6. 

109 Tos. Sanh. ix, 5. 

110 Mishna Sanh. vi, 2. 



Capital Punishment Among the Jews 73 

ness in which they held human life, 111 and many 
passages prove that they had a vivid sense of the 
irrevocability of a consummated death sentence. To 
put a man to death wrongfully is as though one 
destroyed the whole world. 113 

Rabbinical Modifications 

But it is no less clear that the Rabbis did not favor 
capital punishment in practise. It is true, as will be 
shown later, that after the fall of the Temple in 
70 C. E., they no longer had the right of imposing the 
death penalty. But we possess their theory of what 
their practise would have been had they had the 
opportunity of exercising it, and this theory tends 
altogether in the direction of modifying capital pun- 
ishment to its virtual abolition. 

The problem with which the Rabbis grappled was 
how could the death penalty which was demanded by 
the Law be mitigated in the face of the explicit words 
of the Torah. Commutation of the death sentence by 
a fine or by wergild could not be considered where the 
Bible did not specify the option of a ransom (Kofer). 
The Torah expressly prohibits modifying into a fine 
the death penalty which was the due of the murderer. 118 
The Bible furnishes no precedent for commuting the 
death penalty to one of deportation. Exile involved 
the banishment of the Jew from the full exercise of 



111 Their use of the phrase "worthy of death" applied to such 
mild offenders as the scholar with stained clothing (Sabb. 
104a), is naturally to be understood as an emphatic hyperbole. 

112 E. g. Mishna Sanh. iv, 5; Tos. Sanh. ix, 5; Mace. 5b. 

" 3 Num. xxxv, 31, 32; Exod. xxi, 30, 32. 



74 Capital Punishment Among the Jews 

Judaism. Herod was condemned for selling law- 
breakers out of the kingdom. "For slavery to foreigners 
and such as did not live after the manner of the Jews, 
and necessity to do whatever such men should com- 
mand, was an offence against our religion rather than 
a punishment to such as were found to have offended, 
such a punishment being avoided in our original 
laws," — the Bible. 114 The cities of refuge no longer 
had asylum power. Exile was considered a more 
grievous punishment than death by the sword or by 
starvation and was regarded as harder even than death, 
itself the hardest of the ten hardest things created in 
the world. 115 Enslavement to Jews was specified by 
the Bible as a legitimate punishment only in certain 
cases. 116 Similarly, both the application and the 
severity of scourging were limited. 117 

Prisons in Jewish antiquity were used usually as a 
ward house in which the accused was detained until 
sentence could be pronounced. 118 But sometimes the 
prison seems to have been used also as a punitive 
institution. 119 In one instance, the principle of com- 
muting a death penalty to a sentence of life imprison- 



114 Josephus Antiq., XVI, i, 1. Compare I Sam. xxvi, 19. 

" 5 Baba Bathra 8b, 10a. 

116 Exod. xxii, 2 ; II Kings iv, 1 ; Josephus Antiq., XVI, i, 1. 

117 Lev. xix, 20; Deut. xxii, 18; xxv, 3; II Cor. xi, 24; Luke 
xxiii, 15, 16, 22 ; Josephus Antiq., IV, viii, 21 ; XIII, x, 6 ; 
Mace, iii, 1 seqq., 15. But see Maimonides Sanh. 19, where 
among the two hundred and seven cases for which flagellation 
is the legal punishment, eighteen cases are enumerated in 
which flagellation is imposed on the one deserving death 
"from the hands of Heaven." 

118 Lev. xxiv, 12 ; Num. xv, 34 ; Acts iv, 3 ; xii, 4 ; xxii, 19 ; 
Mechilta Mishpatim VI, p. 83a; Schechter, Sectaries, p. 12, 
11. 2-6; Sulzberger, Jew. Quart. Rev., 1914-15, V, 598-604. 

119 Ezra vii, 26. 



Capital Punishment Among the Jews 75 

ment is recognised. The Mishna prescribes 100 that 
when a man has twice committed a crime for which 
excision is the penalty and he has received the lash 
twice, on his committing this crime a third time, he is 
imprisoned and fed on barley until he bursts. Or 
when one has committed a murder and there are no 
witnesses to condemn him, he is imprisoned and fed 
on frugal fare of bread and water. 121 In other words, 
when a murder has been committed and it is certain 
that the accused man was the murderer, but owing to 
legal technicalities, 122 it is impossible legally to prove 
his guilt; or if the circumstantial evidence is 
thoroughly convincing, 128 the Rabbis felt that it would 
be dangerous to society and against all principles of 
justice to allow such a known murderer to go free. In 
any of these cases, he should be imprisoned in a den 
of the height or length of a man and fed in such a 
manner as to bring about his early death. This seems 
to be the only passage in Rabbinical literature in which 
imprisonment is spoken of as a possible mitigation of 
the immediate death penalty. 

From one passage 124 it would seem that in later 
Rabbinic times, (c. 350 C. E.), when the penalty of 
death for murder could no longer be imposed by the 
Jewish court, it was recommended that the death 
sentence be commuted into one of blinding the mur- 



120 Sanh. ix, 5. 

i2*Cf. I Kings xxii, 27. 

122 Either the witnesses were separated and not together, 
(Rab), or the witnesses had not warned the murderer, 
(Samuel), or they had tripped up in giving evidence, (Abimi). 

123 J. Sanh. ix, 5. 

12 *Sanh. 27a bottom. 



76 Capital Punishment Among the Jews 

derer. When it was reported that Bar Chama had 
committed a murder, the Exilarch bade Rab Abba (or 
Acha) bar Jacob investigate the case. If it proved that 
Bar Chama was guilty, his eyes should be put out. 126 
But this passage stands alone, and does not allow us 
to draw any conclusion as to a general practise. More- 
over the expression "to put out his eyes" may possibly 
be figurative, meaning imposing a fine or taking away 
authority. 128 

We see, therefore, that the necessity of adhering to 
the express commands of the Torah prohibited the 
Rabbis from commuting a death sentence into scourg- 
ing, imprisonment, blinding or any other kind of 
mutilation, exile, enslavement, a fine or any other 
punishment. The exact words of the Torah had to be 
upheld. 

Therefore, while rigidly maintaining the Biblical 
principle of capital punishment, the Rabbis availed 
themselves of their right to modify the method of 
executing the death sentence. If they upheld the death 
penalty, there was nothing to prevent their mitigating 
the severity of its application in every way possible. 
We have already seen how stoning was modified in 
practise to precipitation, and burning modified to 
strangulation followed by a nominal burning. Our 
consideration showed that these changes in method 



125 The blind is one of the four classes (poor, leper, blind, 
childless), who are considered as dead. Nedarim 62b. 
Practically, the one blinded is rendered harmless for the 
future. 

126 Rashi ad loc. Kohut's Aruch 3H . See also Peah viii, 9 
of the unjust judge, "until his eyes grow dim," with reference 
to Exod. xxiii, 8, Deut. xvi, 19. 



Capital Punishment Among the Jews 77 

apparently came about in order to secure the easiest 
and most humane methods of death, (since according 
to the golden rule even the condemned criminal is 
one's brother), and in order to spare the body, so far 
as possible, all mutilation or disfigurement. The 
general principle governing the lightening of the 
methods of death was that wherever the Torah does 
not specify which method of death is to be employed, 
the easiest and most humane method is to be used. 127 

Legal Restrictions 

But the most thoroughgoing modification of the 
system of capital punishment was not brought about 
through change in the methods of imposing the death 
penalty, but through surrounding the accused with so 
many legal safeguards that it became virtually im- 
possible ever to impose a death sentence. 

The law limited the right of trying capital cases to the 
high tribunal of twenty-three, not even the king having 
the right to put to death other than through the San- 
hedrin. 128 According to Rabbinical tradition, one very 
large class of capital cases was taken out of the juris- 
diction of any human court, namely those in which the 
Bible stipulates Kareth or Excision as the punishment. 
This ruling at one stroke absolved the Rabbinical 
courts from the obligation of imposing the death 
sentence in a large number of cases. 

In many passages in the Pentateuch it is stated that 
the one committing certain transgressions "will be cut 



"*Sifra 92a, 11; J. Sanh. VII, 24b; Sanh. 52b, bottom. 
128 Josephus, Antiq., XIV, ix, 3; Mishna Sanh. ii, 2. 



78 Capital Punishment Among the Jews 

off from his kinsfolk." 129 Modern Biblical scholars 
understand the phrase as referring to the imposition of 
the death penalty by the court. The Karaites also 
understood Kareth in this sense, through a comparison 
of Exod. xxxi, 14b with the parallel passages xxxi, 
14a, 15 and Num. xv, 35. The one passage prescribes 
Kareth, the others prescribe death as the punishment 
for Sabbath profanation. Similarly Kareth in Lev. 
xx, 3 is the equivalent of stoning, the punishment 
designated in the preceding verse for Moloch worship ; 
and Kareth for blasphemy in Num. xv, 30 is the 
equivalent of stoning mentioned as the punishment for 
the same crime in Lev. xxiv, 14. The fate of Achan, 130 
of Naboth, 131 and of the adulteress, 132 would seem to 
show that the whole family of the convicted person 
could judicially be put to death. In some cases, 133 the 
death penalty is specified as well as the penalty of 
Kareth. 

None the less, the Rabbis consistently understand 
Kareth to be not a death penalty inflicted by man but 
a punishment left in the hands of Heaven. Thus the 
Rabbis interpret Kareth specifically as dying child- 
less, 134 or as dying at 50 years, or, according to Raba, 
between 50 and 60 years, before completing the other- 
wise destined span, 135 or as the cutting off of the soul 



129 Usually translated "cut off from his people." But the 
Hebrew term amav is plural and seems to mean 'kinsfolk' 
rather than 'people.' Gen. xvii, 14; Exod. xii, 15, 19; 
xxx, 33, 38; Lev. vii, 20f, 25, 27; xvii, 4, 9, 10, 14; xx, 6; 
xxii, 3; Num. xix, 13, 20, etc., etc. 

130 Josh. vii, 24f. 

131 I Kings xxi, 3 ; II Kings ix, 26. 

132 Ezek. xxiii, 47; Cf. also II Kings xxv, 7; Num. xvi, 32. 

183 E. g. Exod. xxxi, 14; Lev. xviii, 7, 8, 15, 20, 23, 29. 



Capital Punishment Among the Jews 79 

in the future life. 188 For this interpretation of Kareth 
as a punishment by Heaven would speak the personal 
pronoun in the phrase, "/ will cut off," the active form 
sometimes used. 137 For this would also speak the 
passages wherein the death penalty is threatened as well 
as Kareth, usually adduced as favoring the other inter- 
pretation of Kareth, if we understand them, as we 
well may, as threatening an alternative, either the 
death penalty by the court or Kareth by God. That 
this may be the meaning is clear from a careful reading 
of Lev. x, 1-5, wherein the Moloch worshipper is 
threatened with death by stoning at the hands of the 
people, or if the people do not so punish him, then God 
will cut him off. Such phrases as "they shall bear 
their sin," 138 or "they shall bear their sin and shall die 
childless," 139 or "they shall die childless," 140 would 
also be most naturally understood as taking the right 
of punishment away from the human court and 
leaving it to Heaven. It has been suggested that the 
Niqtal form, usually translated as passive "and shall 
be cut off," should be understood in a reflexive sense, 
"(that soul) cuts itself off." But this explanation 



i3*Yeb. 55a. 

135 Moed Katan 28a; J. Bikk. II, 1, 64c. 

136 Sanh. 64b, 90b to Num. xv, 31; Maimonides, Hilchoth 
Teshuba 8. According to Maimonides, "death by the hands 
of Heaven" differs from Kareth, in that the former refers 
only to this life, the death serving as an expiation, whereas 
Kareth refers also to the future life. But see Jebam. 2a, 
Tosafoth riCN on the meaning of Kareth. 

i"Lev. xvii, 10; xx, 3, 5, 6. Cf. "and / will destroy," 
parallel to "and shall be cut off" Lev. xxiii, 29, 30. 

issLev. xx, 19. 

189 Lev. xx, 20. 

140 Lev. xx, 21. 



80 Capital Punishment Among the Jews 

seems unlikely in face of the occurrence of the active 
forms "I will cut off" or "and I will destroy that soul 
from the midst of its people." 137 Whatever be the 
preferable explanation of Kareth in each passage in 
which the term occurs, the interpretation consistently 
given to it by the Rabbis is highly significant. Their 
tendency away from capital punishment is clearly seen 
in their leaving to the heavenly tribunal the punish- 
ment in all cases where Kareth is prescribed in the 
Bible. 141 

The other restrictions in court procedure are too 
well known to need setting forth here in detail. It is 
enough to mention some of the rules of evidence, 
particularly the minute safeguards with which the 
giving of testimony was surrounded. Torturing of 
witnesses to extract from them convicting evidence 
was entirely unknown. The aim of the court was to 
lead the witnesses into giving evidence favorable to 
the accused, not to coerce them into helping condemn 
him. According to R. Jose b. Jehudah, a witness could 
testify only in favor of the accused. 142 The two wit- 
nesses had to be free adult men, 143 sound in mind and 
body, of unquestioned integrity, 144 and free of all 
suspicion of personal relationship to the defendant 145 
or interest in the case. 146 They were first solemnly 
warned and adjured as to the blood responsibility 



141 Kareth, according to Rabbinical law, could be commuted 
to scourging under certain conditions. Mishna Mace, iii, 15. 
142 Sanh. 33b. bottom. 
li3 Baba Kamma 88a. 

144 Mishna Sanh. iii, 3 ; Sanh. 24a, 24b, 25b. 
145 Mishna Mace, i, 8 ; Mace. 6b, 7a ; Mishna Sanh. iii, 4. 
146 Baba Bathra 43a. 



Capital Punishment Among the Jews 81 

resting on them and their heirs after them. 147 They 
were then cross-examined separately, 148 very search- 
ingly, 149 with the haqira affecting place, 160 time, the 
warning, etc., and with the bediqa going into the 
smaller details. 151 A slight contradiction or dis- 
crepancy in their evidence invalidated their testi- 
mony. 162 They had to prove the act, and, what was far 
more difficult, prove also the intention. In order to be 
able to prove deliberate and understanding premedita- 
tion, the witnesses must both have warned the accused 
before he committed the crime, 168 with a clear warning 
(Hathraa), including a definite reference to the kind 
of punishment and the measure of punishment which 
his act would involve. 164 The warning given by them 
had to have been so clearly understood, that the 
accused had replied that he would commit the crime 
none the less, thereby showing that he had fully 
understood the warning. 166 The act must have followed 
closely on their warning, or the warning by the wit- 
nesses was not considered adequate, on the ground 
that in the intervening time it may have escaped the 
culprit's memory. 166 If there was a technical flaw in 



147 Mishna Sanh. iv, 5; Sanh. 37a. 

148 Sanh. 29a; Susanna 52 seqq. 

"oSanh. 32b. 

150 Mishna Sanh. v, 1. 

161 Mishna Sanh. iii, 6; v, 2. 

152 Mishna Sanh. v, 2; Sanh. 40a; Susanna ibid.; Mark xiv, 
56, 59. 

153 Mishna Sanh. passim; Sanh. 40a-41a; 80a; Mishna Mace. 
1, 9; Mace. 6b; Mechilta to Exod. xxi, 12; Sifra to Num. xv, 
33 and to Deut. xxii, 24. 

154 Sanh. 8b; Mace. 16a. 

16 »Sanh. 8b. 

1B «Sanh. 40b. 



82 Capital Punishment Among the Jews 

the giving of this warning by the witnesses, the 
accused was given the benefit of the doubt that there 
had not been dolus but only culpa, 167 and where the 
crime was not premeditated, no death penalty could 
be imposed. 168 ^ 

Further, circumstantial or presumptive evidence was 
disallowed. The witnesses had to have seen each other 
when the act was committed, 159 and had to have seen 
the act itself, and not only what went before it or what 
followed it. For instance, even in early Rabbinic days, 
Simon ben Shetach (fl. 80 B. C. E.), who undoubtedly 
believed in and imposed the death sentence during his 
lifetime, 160 did not consider the strongest circumstan- 
tial evidence as evidence. It is related 161 that he once 
saw one man pursuing another. He followed them 
and found the pursued man murdered and the pursuer 
holding a sword dripping with blood. Simon said to 
the murderer: 'Either you or I killed this man. But 
what can I do ? Your blood guilt is not delivered into 
my hands ; for the Torah says 162 that you can be con- 
demned only by the actual testimony of two or more 
witnesses. May God who knows the inward thoughts 
requite the one who committed this murder/ 163 

In these and in similar ways, tradition developed the 



157 Sanh. 41a; 8b; Mace. 6b; 9b. 

168 E. g. a money penalty was allowed in compensation for 
unintentional murder or constructive homicide, Exod. xxi, 
29, 30. 

169 Macc. 6b. 

160 E. g. Mishna Sanh. vi, 4. 

161 Sanh. 37b; Mechilta to Exod. xxiii, 7. 

162 Deut. xvii, 6. 

1M Sanh. 37b and Tosafoth; Maimonides, Hilchoth Sanh. 
xx, 1. 



Capital Punishment Among the Jews 83 

rules contained in the Torah, that two witnesses were 
needed and that the witnesses themselves had to carry 
out the death sentence. As the number of necessary 
conditions increased, it became virtually impossible in 
a capital case to obtain unassailable testimony adequate 
for a condemnation. 

Many other legal refinements made it still more 
certain that no one would ever be legally condemned to 
death. For example, murder was not punishable by 
death, as we have seen, if it could be proved to have 
been not fully premeditated or intentional. Thus, if 
the murderer had meant to kill one man and had killed 
another ; or had he meant to wound him on the thigh 
and instead had struck him on the heart and killed him, 
capital punishment could not be meted out, since the 
criminal intent to kill was not present. 164 Again, if the 
murderer were weak-minded, or intoxicated, or a deaf- 
mute, or a minor, or acting under compulsion or acting 
in self defence, 165 etc., he could not be condemned to 
death. Or again, if the man murdered had been 
fatally ill or for any other reason would not have lived 
had he not been murdered, the guilty man was not 
considered liable to the death penalty. And even if the 
murderer was suffering from an illness that in the 
ordinary course would shortly kill him, the court would 
not anticipate God's decree by carrying out the death 
penalty. 

But over and above these thick protecting hedges 
which made it virtually imposible to obtain a death 
sentence, there were many other considerations which 



ie 4 Mishna Sanh. ix, 2. 
i«Sanh. 72a - 



84 Capital Punishment Among the Jews 

further removed the possibility of executing a capital 
sentence. Thus there was a thorough-going rule that 
no punishment affecting the personality of a man 166 
might be imposed on a deduction a fortiori. 167 Unless 
there was explicit Biblical warrant for the death 
penalty, it was prohibited to deduce this penalty by 
rules of interpretation, a principle in itself that worked 
consistently towards moderating the severities of the 
written law. 

Moreover, just as the power of the witnesses was 
minimized and the rights and privileges of the de- 
fendant were magnified, so also the rights and 
privileges of the judges were hemmed in and restrained 
in every way. Only a high court of twenty-three 
could try capital cases. 168 The judges all had to be 
picked men of high standing, character and attain- 
ments. 169 They were impressed with the words of their 
own warning to the witnesses, that he who causes a 
soul to be put to death unjustly is as though he had 
destroyed the whole world. 170 When engaged on a 
capital trial, they were put under severe discipline. 171 
They took the place both of the counsel for the de- 
fendant and of the jury. 172 Two death penalties could 
not be pronounced on one day. 173 For final condemna- 



166 Except in pecuniary penalties, Baba Kamma 4b, 
Tosafoth. 

167 Macc. Sb; Kent. 3a top; Sanh. 54a bottom; 76a; Sifra to 
Lev. xx, 17. 

168 Mishna Sanh. i, 4. 

16 »Mishna Sanh. iv, 2; Sanh. 36b. 

170 Mishna Sanh. iv, 5. 

171 Tos. Sanh. ix, 1. 

172 Tos. Sanh. vii, 2. The duty of trying to find means of 
freeing the accused is deduced from Num. xxxv, 25. 



Capital Punishment Among the Jews 85 

tion, a second ballot had to be taken on the following 
day. 174 If twelve of the twenty-three judges were in 
favor of acquittal against the other eleven, the de- 
fendant was freed by the majority of one. But if 
twelve held him guilty and eleven held him innocent, 
the defendant could not be condemned by the majority 
of one. A majority of at least two was necessary for 
a condemnation. 176 A judge was not permitted to 
change his mind and declare his decision for a con- 
demnation when once he had voted for an acquittal. 179 
Unless each judge could give an individual reason for 
his opinion his vote was not counted. 177 According to 
the striking opinion of Rab Kahana, if the judges were 
unanimously in favor of conviction, the accused should 
be freed. 178 In general, it was held to be better that 
the guilty should escape punishment than that one 
innocent man be put to death. The judges had the 
less hesitancy in inclining to mercy, because of the 
belief that God would not allow the guilty to remain 
unrequited. 179 In the story of circumstantial evidence 
quoted above, Simon ben Shetach left the punishment 
of the murderer to God. When the Jewish courts no 
longer had jurisdiction, it was felt that God would 
fittingly punish those who had rendered themselves 



173 Except for an adulterer and an adulteress receiving the 
same punishment for the same sin, J. Sanh. IV, 5. Tos. Sanh. 
vii, 2. 

174 Mishna Sanh. iv, 1 ; v, 5. 

175 Mishna Sanh. i, 6; iv, 1; v, 5. 

176 Mishna Sanh. iv, 1 ; v, 5. 

177 Tos. Sanh. vii, 2, ix, 1 ; Sanh. 32a, 34a. 

178 Sanh. 17a. 

" 9 Deut. xxxii, 35. 



86 Capital Punishment Among the Jews 

legally liable to the death penalty. 180 The Mechilta, 
elaborating the Biblical words "For I, God, will not let 
the guilty go free," 181 says, that if one who is guilty has 
been discharged by the court as not guilty, he is not to 
be taken back for a retrial. God has instruments and 
means enough to bring upon him the punishment that 
he has incurred. 

After an acquittal there could be no appeal; but 
after a conviction an appeal could be lodged at any 
time. 182 If one ultimately was condemned, he was 
given every facility to escape his fate through the 
publicity of a herald's proclamation, 183 through the 
assiduous attempt to elicit new favorable evidence 
even during the procession to the place of execution, 184 
etc. 

Examples of legal safeguards could readily be mul- 
tiplied. But it is sufficient for our present purpose to 
sum up these details by saying that the publicity of 
the trial, the confrontation of the defendant and the 
plaintiff, the absence of torture, the careful elimination 
of improper witnesses, the solemn warning to the 
witnesses, the searching examination of the witnesses, 
the remarkable requirements for a valid warning, the 



180 Instead of the required stoning, the culprit would fall 
from a roof or be trampled by an animal. Instead of being 
burned by the sentence of a court, he would fall into a fire or 
be bitten by a snake. Instead of being executed by the court, 
he would fall into the power of the government or of robbers. 
Instead of suffering the legal punishment of strangulation, he 
would die from drowning or suffocation. Sanh. 37b. 

181 Exod. xxiii, 7. Rashi. 

182 Mishna Sanh. iv, 1. 

« 3 Sanh. 42b, 43a. 

184 Macc. 7a; Mishna Sanh. vi, 1 seqq. ; Susanna 45; Moed 
Katan 14b. 



Capital Punishment Among the Jews 87 

extraordinarily high standard as to what constituted 
evidence, the equally extraordinary number of loop- 
holes allowed to the defendant, the limitations on the 
court, forbidding it to deduce a capital punishment if 
the Bible did not explicitly call for one, the immediate 
acquittal by any majority of the judges, the postpone- 
ment of the final decision if a majority were in favor 
of death, the obligation on those who had voted against 
the death penalty of keeping their vote unchanged at 
the second ballot, together with the permission to 
change their opinion granted those who had voted in 
favor of the death penalty, the right of the judges after 
a condemnation to change their opinion any time before 
the execution, the constant public appeal for further 
evidence until the final execution, the prohibition of 
more than one capital sentence being pronounced i^i 
one day, and other innumerable elements of legal inter- 
pretation and procedure, all worked to make legal 
capital punishment impossible of practical application. 

Practise and Theory 

In view of the fact that in pre-Christian and the 
earliest Rabbinic times legal capital punishment was 
carried out, as has been shown above, it becomes neces- 
sary to inquire when and why the practise of capital 
punishment ceased among the Jewish people. In Bib- 
lical times, and in post-Biblical times when the Saddu- 
cees controlled Jewish life, the old death penalties were 
carried out without essential modification. But under 
Roman rule, a change took place. Schurer claims 188 

186 Schuerer, (4th edit.), II, 261, note 79; and pp. 264, 265. 



88 Capital Punishment Among the Jews 

that from the very beginning of the Roman dominion 
the Jewish courts lost their competence to judge capital 
cases. According to the gospel according to John, 
Pilate is made to say to the Jews, "Take Jesus your- 
selves and judge him according to your law. The Jews 
said unto him, Tt is not lawful for us to put any man 
to death/ " 18e Talmudic sources state that forty 
years prior to the destruction of the Temple, i. e., 
30 C. E., the right of deciding capital cases was taken 
from the Jewish courts. 187 But Rab Joseph, R. Hiyya 
and the school of Hezekiah taught, that this right was 
taken away from the Jews by the Roman government, 
from the time that the Temple was destroyed, i. e., 
70 C. E. ; adding, that the Sanhedrin abolished the 
practise though not the theory of the four death 
penalties. 188 Of these two dates given by the Rabbis, 
the second is apparently correct. The earlier date, 
30 B. C. E., probably arose from a misunderstanding. 
The original statement made by R. Ishmael b. Jose, 
(end of the second century), was that forty years 
before the destruction of the Temple, the Sanhedrin 
moved from the Temple and held its sessions in a shop. 
There is no reason to doubt this statement, Schurer 
notwithstanding. But R. Isaac bar Abdimi added to 
it: "This implies that they no longer judged capital 
cases." This second statement is seemingly not an 



186 John xviii, 31. The trial of Paul described in Acts xviii, 
12-16, reflecting conditions in Corinth, depicts the Jew as 
exercising jurisdiction only in religious matters. 

187 Sanh. 41a bottom; Sabb. 15a; Aboda Zara 8b; Rosh 
Hashana 31a bottom; Mechilta de R. Simon p. 126; J. Sanh. 
I, 1, 18a ; VII, 2, 24b ; Nachmanides to Numbers xxxv, 29. 

188 Sota 8b; Keth. 30a bottom; Sanh. 37b. 



Capital Punishment Among the Jews 89 

historical tradition, but only an inference drawn on 
the theory that capital sentence could be pronounced 
only in the special hall of the Sanhedrin in the Temple. 
This inference is disproved by a number of historical 
facts, which show that the Rabbinical courts had com- 
petence in capital cases in Roman times until the de- 
struction of the Temple and of the Jewish State in 
70 C. E. Josephus mentions the reluctance of the 
Pharisees to impose the death penalty, contrasting 
them in this regard with the Sadducees. 189 He states 
further that when a Sadducee became a judge, he 
would adopt Pharisaic norms of judgment, because 
the public would not otherwise tolerate him. 190 Else- 
where 191 he mentions that the Essenes punish blas- 
phemy by death. These three notices, although not 
necessarily referring to post-Christian times, are 
significant when taken in connection with the following 
facts. Up to the time of the destruction of the Temple, 
the Romans granted to the Jews the right to put to 
death any foreigner, even a Roman citizen, who passed 
beyond the Temple limits, 192 and there is no warrant 
for Schiirer's supposition that this right could be 
exercised only after obtaining the sanction of the 
procurator. 193 Certainly under King Agrippa, 41-44 
C. E., this Jewish law of capital punishment was in 
force. 194 The story of the trial of Stephen 195 and the 
different accounts of the trials of Paul before the 



™*Antiq., XIII, x, 6. 
™Ibid., XVIII, i, 4. 
191 War, II, viii, 9. 
™War, VI, ii, 4. 

193 Schuerer, II, 262. See J. Juster, Les Juifs dans V Empire 
Rotnain, II, 142, note 5. 



90 Capital Punishment Among the Jews 

Sanhedrin, 196 although they are often untrustworthy, 
presuppose the competence of the Sanhedrin to judge 
capital cases at a period later than the year 30 C. E. 
Anan, the Sadducean highpriest for three months in 
62 C. E., is said by Josephus to have imposed and 
carried out the death penalty. 197 Rabbi Eleazar ben 
Zadok cannot have seen the burning of the high' 
priest's daughter 198 prior to 40 C. E., since in the year 
70 C. E. he was still a young man. 

There seems therefore to be no valid reason for 
doubting the statement of R. Joseph, R. Hiyya and the 
school of Hezekiah, that the Roman government 
allowed the Jewish courts a measure of jurisdiction 
in capital cases up to the time of the destruction of the 
Temple in 70 C. E., 199 but that after that date the 
Jewish courts were no longer allowed this jurisdiction. 
Origen (d. 254 C. E.) says that the Jewish law can no 
longer punish the murderer or stone the adulteress 
because the Roman government has assumed these 
rights. 200 The Didascalia 201 also remarks, that the 
Jewish law of capital punishment is no longer in force. 



184 Agrippa's Letter to Caligula; Philo Leg., 39, quoted in 
Juster loc. cit., p. 139, note 1. 

195 Acts vi, 7 et seqq. 

196 Acts xxi, 28f ; (xxiv, 6; xxi, 29) ; xxvi, 21; (xxiii, 6, 29; 
xxiv, 5, 12ff ; xxv, 7f . 27 ; xxii, 24, 30) ; xxiv, 6 (8) ; xxiii, 3, 9. 

197 Antiq., XX, ix, 1. Jos. Lehmann, Revue d. Etudes juives, 
XXXVII, 1898, pp. 13, 14. 

198 See note 33. 

199 Juster, /. c. 122-149, from a thorough examination of the 
sources comes to the conclusion that the Sanhedrin preserved 
the right of both pronouncing and of carrying out a capital 
sentence until the year 70 C. E. 

200 In Rom. 1, 6, c. 7, quoted by Juster, ibid., p. 150. 

201 Didascalia Ch. xxvi, 6; xix, 2. Juster, ibid. 



Capital Punishment Among the Jews 91 

The Talmud testifies uniformly that the Jewish courts 
had no power over life and death after the year 70 C. E. 

But there are some minor exceptions to this that 
must be noted. 

(i) A certain R. Hama b. Tobiyah caused Imarta, 
daughter of the priest Tali, to be burnt. But his 
action was condemned, both because the sentence had 
been carried out in the barbarous non-Pharisaic method 
that R. Eleazar ben Zadok had seen in his youth, 202 and 
because a capital sentence had been imposed after the 
destruction of the Temple. 203 (ii) On one occasion a 
certain Tamar was condemned (although not to capital 
punishment) by Rab Ammi, Rab Assi and Rab Hiyya 
b. Abba in Tiberias (c. 300 C. E.). She complained to 
the Roman proconsul in Caesarea of this usurpation 
of the Roman right of judgment, and the influential 
intervention of Abbahu was required to protect the 
Rabbinical judges. 204 (iii) On another occasion, Rab 
Shila, perhaps the Tana of that name, caused a man 
who had committed an offence to be whipped. The 
man complained to the Roman government that Rab 
Shila was exercising judicial functions without the 
authority of the government. The government sent 
an officer to investigate the case, and the complainant 
was adjudged by the officer to have rendered himself 
liable to the death penalty through the offence for 
which R. Shila had punished him. The offender was 



202 See note 33. 

203 Sanh 52b 

20 *J. Meg. HI, 2. 74a. Graetz (3rd edit.), IV, 284f. Bacher, 
Agad. d. pal. Amoraer, II, 94f. For a different interpretation, 
see Perles, Monotsschrift, XXXVII, 359-361. 



92 Capital Punishment Among the Jews 

thereupon handed over by the officer to Rab Shila. 
But Rab Shila refused to consummate the sentence, on 
the ground that since the exile from Palestine, the right 
of capital punishment had not been vested in the Jews. 
Subsequently, when the man was about to make a 
second complaint about Rab Shila, Rab Shila who had 
been given the staff of judicial authority, killed the 
man with his staff. 205 (iv) Another case in point is the 
following: A man once declared before Rab (d. 247 
C. E.), that he would persist in a certain course 
despite Rab's warning. Rab Kahana who was present 
rose up and killed the contumacious man. Rab de- 
clared the killing to be legally justified, but advised R. 
Kahana to flee to Palestine, since the new Persian 
rulers were stricter in punishing bloodshed than the 
Romans had been. 206 (v) Lynch law is recognized by 
the Mishna, when it allows certain offenders to be 
struck down flagrante delicto. 207 (vi) In connection 
with the remark that the one born under the planet 
Mars will be a shedder of blood, Raba (4th century) 
said, 'I was born under Mars'; to which his pupil 
Abaye remarked, 'Master, you also (as exilarch) 
punish and put to death/ 208 (vii) Origen in his letter 
to Africanus (240 C. E.) declares that the Jewish 



205Ber. 58a. 

206 Baba Kamma 117a, 117b. 

207 Sanh. viii, 7. According to tradition, the offender may be 
killed flagrante delicto in the three cases there mentioned, only 
if he has received legal warning (see to notes 153-158), and if 
a lesser physical injury would be insufficient to prevent the 
crime. Mishna Sanh. ix, 6 mentions three other cases, in at 
least one of which the zeal of the one who would strike down 
the offender is restrained by a number of conditions. 

2 °8Sabb. 156a. 



Capital Punishment Among the Jews 93 

Patriarch in Palestine exercised the power of im- 
posing and carrying out capital sentences. 209 

But the utmost that these cases prove is, that sub- 
sequent to 70 C. E., a capital sentence carried out by a 
Jew, whether by lynch law or after judicial trial, was 
an exception occasionally tolerated through the 
generosity, the weakness or the corruption of the 
Roman or the Persian authorities. The fact remains 
that subsequent to 70 C. E., the Jewish law governing 
capital punishment fell into disuse. The Amoraim, 
although they were the bearers of tradition, were not 
familiar in practise with the actual judgment of 
capital cases and the imposition of capital punishment. 
It is clear, therefore, that many of the dicta of the 
later Rabbis concerning details of the law of capital 
punishment are legal inferences rather than historical 
facts, and many of their discussions are discussions of 
theory as to how the death penalty would be carried 
out if the Rabbinic courts should again have 
jurisdiction. 

Similarly, much of the elaboration of criminal legal 
procedure at which we have glanced is a theoretic 
development, dating from the first centuries of the 
common era, which was never put to a practical test. 
Many elements in it, such as the regulations governing 
witnesses and their testimony, are elaborated theoret- 
ical developments of early practise. In their fully 
developed form, these regulations would have broken 
down as unworkable at the first touch of practise. 
Much else is on the face of it dialectic, legal discussion 



20 »Ep. ad. African. Par. 14. Juster /. c, p. 151, note 2. 



94 Capital Punishment Among the Jews 

conducted on the principle of the meritorious nature of 
constant exposition and interpretation of the law. 
This principle indeed is quoted in connection with the 
decisions governing capital punishment. 210 As an 
instance of this type of expository discussion, may be 
mentioned the decision 211 that strangling should be the 
punishment for one who through craft or force gets 
another into his power, forces him to serve, and then 
sells him into slavery. Such a ruling is hardly a 
precedent based on practical experience. The dis- 
cussion in the Talmud 212 proves it to be only a theo- 
retic case. Similarly, the restrictions governing the 
treatment of the apostate city are admittedly only 
theoretic, since the conditions required were so many 
and so specialized that they could never occur together. 
It is frankly confessed, that these conditions are only 
the result of study-house discussion conducted for the 
merit of detailed and far-reaching interpretation. 213 
In exactly the same way, it is openly stated, that a case 
of the "rebellious, gluttonous son" 214 never had 
occurred and never would occur, the conditions re- 
quired by the Rabbinic jurists being practically im- 
possible of occurrence together. The formulation of 
these conditions was admittedly only the result of 
dialectic development. 215 
A passage was quoted above, 216 prescribing imprison- 



210 Sanh. Sib. 
211 Mishna Sanh. xi, 1. 
212 Sanh. 86a. 

213 Tos. Sanh. xiv, 1 ; Sanh. 71a. 
ai *See note 98. 

216 Deut. xxi, 18-21 ; Mishna Sanh. viii, 1-5 ; Tos. Sanh. xi, 6 ; 
Sanh. 71a. 
2 "Note 120. 



Capital Punishment Among the Jews 95 

ment in a kipah in certain cases. Where the Talmud 
asks what is meant by kipah, and R. Jehudah explains 
that by kipah is meant a den of about five and a half 
feet in size, 217 it is clear that we are dealing with 
traditions about legal matters which had not had 
practical application within the memory of the 
Amoraim. When, further, we remember the discus- 
sions among the Rabbis themselves, such as which death 
penalty should go with which crime, or which would 
be the correct method of execution, or whether the 
dead body has to be hanged only in certain cases or 
in others also, and similar debates, it is clear that we 
often have to do with matters of theoretic discussion 
about which there was no certain tradition. In fact, 
in one passage, a legal decision concerning capital pun- 
ishment is called a decision that will be of practical 
application only when the Messiah comes and the 
Jewish system of capital punishment will be once more 
in use. 218 

The result, therefore, to which our investigation 
leads along various converging lines is, that originally 
the death penalty was carried out through the decisions 
of the court approximately according to the demands 
of the Bible. But at least as early as the beginning of 
the Christian era, modifications had arisen, particu- 
larly among the Pharisees, affecting the methods of 
inflicting the death penalty. 219 These modifications 
apparently grew out of two chief causes, (a) the 



217 Sanh. 81b. 
2isSanh. 51b. 

219 E. g. Judah ben Tabbai and Simon ben Shetach, Mishna 
Mace, i, 6; Mace. 5b; Sanh. 37b. 



96 Capital Punishment Among the Jews 

desire to preserve the body from mutilation or dis- 
figurement (possibly in part owing to the Pharisaic 
belief in the resurrection which had not been of 
weight with the Sadducees), and (b) the tendency to 
extend the golden rule, so as to make the death penalty 
as humane as possible. But the Rabbinic courts lost 
their jurisdiction in capital cases at the fall of the 
Jewish state in 70 C. E. With this, went the trans- 
ference of the problem of capital punishment from the 
realm of fact to that of legal theory, and Rabbinic, 
juristic imagination became free to develop the field 
of historical tradition, untrammeled by the restraints 
of practise. The compensating spiritual inbreeding, 
which occurred when external manifestations of 
Jewish national life were proscribed, resulted, in this 
special legal field as in all other fields of Jewish 
thought, in the over luxuriant development of the 
theory of Jewish practise. In Amoraic times, the 
Rabbis no longer recognised with certainty in many 
cases, whether a practise was old and traditional, or 
whether it was a comparatively new development 
based only on theoretic deduction. Even in early 
Tannaitic times, there was often uncertainty as to 
what was known through tradition and what was 
known through interpretation. This is brought out 
very clearly in the account of the discussion between 
Hillel and the Bene Bethera on the question of the 
sacrifice of the paschal lamb on Sabbath. 220 The 
Rabbis therefore often projected legal conceptions 
into the past as actual facts. 221 



220 J. Pes. VI, 1 beginning, 33a. 

221 Sanh. 53a, top, makes the claim that the decisions con- 



Capital Punishment Among the Jews 97 

It is impossible for us to pick out from the vast 
accumulation of statements, rules and principles 
governing capital punishment according to Amoraic 
ideas, exactly how much is historical tradition founded 
on actual practise and how much only theoretic de- 
duction. But from the beginning of the Rabbinic 
period, we can clearly trace a growing feeling of 
repugnance to capital punishment, which, along various 
lines, succeeded in making capital punishment obsolete 
through legal theory. Had the later Rabbis ever been 
granted the right of trying capital cases, the theory 
which had been developed would have made legal 
capital punishment impossible of application. Thus, 
the Mishna already could say, 222 that a Sanhedrin 
condemning to death once in seven years was called a 
destroying or bloody Sanhedrin. Rabbi Eleazar ben 
Azariah (first cent.) said that it was so called for 
imposing the death penalty even once in seventy 
years. 223 

It should be plainly recognised that capital punish- 
ment was never formally abolished by the Rabbis. 
The penalty of death was demanded by the laws 
contained in the sacred statute book, the Bible, and as 
such it was accepted as needing no justification or 
defence. But it was legislated out of all practical 
application in the development of the law. The Rabbis 
of the Talmudic era abolished capital punishment in 



cerning the four methods of capital punishment are traditional. 

222 Mishna Mace, i, 10. 

223 It is not unlikely that both statements represent historical 
theory rather than historical fact, a suggestion that seems to 
find support from the words that follow, in which Rabbi 
Akiba and Rabbi Tar f on claim that had they been members of 



98 Capital Punishment Among the Jews 

the only way open to them, — in theory, as they would 
undoubtedly have abolished it also in legal practise 
while retaining it as a dead letter on the fundamental 
statute book, the Bible, had Jewish national inde- 
pendence been regained in their day. 

Post-Talmudic Development 

A few words should be added relative to the de- 
velopment of the idea of capital punishment among the 
medieval Jews. 

In post-Talmudic times, the problem of capital 
punishment according to Jewish law scarcely arose. 
Although the theory of it had been fully worked out, 
there were no occasions for the application of the 
theory, both because the Temple no longer stood and 
the Jewish courts had no jurisdiction, 224 and because 
after the interruption of Semicha (ordination), no 
judges were regarded as competent. 225 This statement 
is true, however, only with certain limitations. 
Although as a general rule the Jewish courts in the 
diaspora had no jurisdiction in capital cases, there 
were times and places in which the power of imposing 
the death penalty was vested in the Jewish courts. 
Thus Asheri (c. 1300) wrote : "In no country of which 
I have heard have Jews their own courts for the trial 
of criminal cases except here in Spain. It was a 
source of great astonishment to me when I came to 
Spain, that the Spanish Jews should try criminal cases 



a Sanhedrin, the death sentence would never have been 
imposed. 

224 See notes 104 and 105. 

225 Tur, Hoshen Mishpat, I. 3. 



Capital Punishment Among the Jews 99 

without the full and authorized Sanhedrin ; but I was 
informed that this was done in accordance with an 
order of the government." 228 Similarly, we find the 
Jews of Tudela asking the viceroy of Navarre, "That 
he would be pleased to order and that we practise the 
Jewish law as our ancestors have hitherto; that is, 
when a Jew or Jewess commits a sin, on our magis- 
trates applying to the bailiff and notifying to him the 
sin committed, and the punishment it deserved 
according to Jewish law, the bailiff shall execute it, 
and enforce the sentence of our said magistrates, 
whether of condemnation or acquittal; or of any 
demand from one Jew to another, as we have been 
accustomed, not affecting the rights of our lord the 
king." This right was granted them. 227 

Asheri himself unhesitatingly imposed the sentence 
of death on an informer. 228 The Moser (informer, 
delator), constituted so poignant a danger to Jewry in 
exile, that the death penalty was not infrequently 
consummated in his case. Jewish law gives the right 
to kill the informer, on the principle of life for life. 
Since he is seeking your life, you are justified in saving 
your own by taking his. 229 The death sentence on 
the Moser was pronounced by the Jewish community 
and carried out by the non- Jewish authorities to whom 
the convicted delator was handed over. Maimonides 
(12th cent.) declares that it regularly happens in the 
cities of the West that they kill informers, or hand 



"eResponsa XVII, 8. Cf. Teshuboth Ha-Rashba, II, 290. 
227 Lindo, The Jews of Spain, p. 150f. 
228 Responsa XVI. 1. 
22»Ber. 62b, 72a. 



100 Capital Punishment Among the Jews 

them over to the non- Jews to be killed or dealt with 
according to their guilt. 230 

Similarly, Asheri's son, Jacob, in conjunction with 
a tribunal of Rabbis in Toledo, condemned to death the 
informer Joseph ben Samuel and handed him over to 
the royal executioner. 231 Joseph ibn Migas of 
Lucena (d. 1141) caused an informer to be stoned on 
the eve of the day of Atonement. 232 Others, who 
approved of the extermination of informers, or who 
actually passed the sentence of death on them and 
handed them over to the State authorities for execu- 
tion, were such leaders of Spanish and North African 
Jewry as Jonah Gerondi and Solomon ben Adereth 
(c. 1280), 233 Isaac ben Shesheth (14th cent.), Abraham 
Benveniste (1432), Simon ben Zemach Duran (1400), 
and his son Solomon. In the particular case in which 
Jonah Gerondi and Solomon ben Adereth acted as the 
judges (c. 1280), the family of the informer tried in 
vain to stir up the non-Jewish authorities by declaring 
that a judicial murder had been committed. They 
claimed that according to Jewish law, the Jews had 
long foregone the right of imposing a capital sentence, 
that the sentence had not been pronounced by a San- 
hedrin of twenty-three, etc. The authorities refused 
them a hearing. But Solomon ben Adereth found it 
necessary to justify the action that had been taken. 
He therefore submitted the case in all its details to the 



230 Yad, Hilchoth Hobel u-Mazzik, viii, 2. 

231 Judah ben Asher, Responsa Zichron Jehuda f. 55b, 
No. 75, quoted by David Kaufman, Jew. Quart. Rev. 1896, 
VIII, pp. 219f. 

232 Ibid. 

233 Responsa of Rashba V, 290. 



Capital Punishment Among-thc 'fc'ibs ; 1*01 

Rabbis of North France. Only one answer has been 
preserved, — that of Rabbi Meir of Rothenburg, who 
clearly and decidedly ranks himself on the side of 
Ben Adereth. 234 But it will be seen that in all these 
cases, the utmost power that was allowed to the 
Jewish tribunal was that of pronouncing the sentence 
of death. The consummation of the sentence was left 
to the State authorities. On Aug. 21, 1379, at the 
request of a delegation of Jews, the royal farmer of 
taxes, Joseph Pichon, was beheaded as an informer by 
the royal executioner. One result of this affair was, 
that the Cortes issued the following decree, depriving 
the Rabbis and the Jewish courts of the country of the 
right of deciding criminal cases: "We ordain and 
command, that henceforward it shall not be permitted 
for any Jews of our kingdoms, whether rabbis, elders, 
chiefs or any other persons that now are or shall be 
hereafter, to interfere to judge in any criminal cause 
to which death, loss of limb or banishment is attached ; 
but they may decide all civil causes that appertain to 
them according to their religion. Criminal cases shall 
be tried by one of the Alcaldes, chosen by the Jews in 
the towns and places of their respective jurisdictions.... 
This is to be understood for those criminal cases that 
have hitherto been tried by the said Jews.... 235 Subse- 
quently, owing to the influence of Abraham Benveniste, 
this right of judging criminal cases was restored to the 
Jewish courts in Spain. 



23 *Kaufmann, Ibid, pp. 221-238 gives all the details of this 
interesting leading case. 

235 Lindo, Jews of Spain, 160-162. Graetz, Geschichte, 
VIII, 44. 



192 Capital Punishment Among the Jews 

But this power could hardly be exercised outside of 
Spain and North Africa, and in those lands it could be 
exercised only in favorable periods. In Angevin 
England, "Criminal cases between Jews, except for the 
greater felonies, as homicide, mayhem, etc., could be 
decided in the Jewish courts according to Jewish 
law." 236 In other lands also, the Jewish courts were 
sometimes empowered to try lesser criminal cases ; but 
rarely, if ever, could they independently impose and 
carry out the death sentence. At a later period, the 
Kahals in Eastern Europe were granted autonomous 
jurisdiction in civil cases. But their greatest power 
hardly exceeded the right given them in Lithuania by 
charter of King Michael Wishnevetzki (1669-73), "to 
summon the criminals before the Jewish courts for 
punishment and exclusion from the community when 
necessary." Rabbi Meir Sack emphatically protested 
against buying the freedom of Jewish criminals from 
the authorities. "We should endeavor to deprive 
criminals of opportunities to escape justice." Similarly, 
Meir Lublin declares that the death penalty for a 
murderer, decreed by the law of the land, should be 
allowed to be consummated, if the murderer were a 
Jew. 237 

It may be stated broadly, that after the Roman 
period, the right of pronouncing the death sentence 
was only rarely granted to the Jews, while the right of 
inflicting capital punishment was practically never 
vested in the Jewish community. Theoretically, 



286 Jacobs, Jews of Angevin England, pp. 331, 43, 49. 
M7 Responsa, 138, Jew. Encycl, Art. Lithuania. 



Capital Punishment Among the Jews 103 

Jewish legal opinion gave to the leading authorities of 
the generation or of the district, the right to act as a 
competent Sanhedrin of twenty-three in judging 
criminal and capital cases, on urgent occasions of 
popular wrongdoing. 238 But this right could so rarely 
be exercised that it became virtually obsolete. 



288 Tur and Shulchan Aruch, Hoshen Mishpat ii. Cf. the 
exemplary punishments referred to above, notes 14 and 80. 



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